The Georgia Department of Transportation has denied the application of a Ku Klux Klan group to join the state’s Adopt A Highway program. The denial of the International Keystone Knights of the KKK to adopt part of Route 515 in the Appalachian Mountains raises some serious first amendment questions. While popular, the denial could could face a successful challenge under existing case law.
In a statement Tuesday, the agency seemed to go out of its way to say that it rejected the application out of opposition to the group’s beliefs. The letter of denial from Department of Transportation Commissioner Keith Golden said that “promoting an organization with a history of inciting civil disturbance and social unrest would present a grave concern.” It further said that allowing the group to take care of a stretch of highway and could “have the potential to negatively impact the quality of life” of people in the county and state. It added that “encountering signage and members of the KKK along a roadway would create a definite distraction to motorists.”
What is curious is that the state added, almost as an aside, that the designated stretch was not eligible for adoption because its posted speed limit exceeds the program maximum of 55 mph. Unless the state has allowed other groups to adopt such segments, that would appear a threshold barrier to the adoption. However, it would only mean that the group would have to adopt a different segment, which the state appears to say will not happen. State Rep. Tyrone Brooks, head of the Georgia Association of Black Elected Officials, said that the application even being considered was offensive.
Harley Hanson, the “exalted cyclops” of the Klan’s “Realm of Georgia,” filed the application on behalf of the International Keystone Knights of the KKK in Union County. He has a free speech claim in light of the decision. The Supreme Court has rejected efforts to discriminate on the basis of a group’s beliefs or values in terms of government benefits. It is not enough to simply say that there is no “right” to such benefits:
[E]ven though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Such interference with constitutional rights is impermissible.
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958).
The case is similar to Cuffley v. Mickes, where the United States Court of Appeals for the Eighth Circuit upheld a lower court ruling in favor of the KKK seeking to participate in an Adopt-a-Highway program. The state had renamed a highway after Rosa Parks and then banned hate groups from participating. Notably, the court observed that the state regularly allows for groups that do not meet its criteria to still participate in the program. The court found such objections to be “pretextual” and held
The State’s purported reasons for denying the Klan’s application are so obviously unreasonable and pretextual that, in the end, we are left only with the admitted reason the State was motivated to so carefully scrutinize the Klan’s application as an explanation for the denial: that the State disagrees with the Klan’s beliefs and advocacy. Nevertheless, the First Amendment protects everyone, even those with viewpoints as thoroughly obnoxious as those of the Klan, from viewpoint-based discrimination by the State.
Here is that decision: 992334P
I share the same view of the KKK as most Americans. My mother and her family of coal miners went to sleep on many nights in Ohio watching a burning cross on a hill near Yorkville, Ohio. It was a message from the local clan that the Italians were not welcomed in the area. However, there is a more important principle of free speech to protect here — a value that transcends the message of racial superiority of the KKK. Georgia has a long and painful history with the KKK, but that cannot excuse its use of content-based discrimination against the group in my view. What do you think?
Source: KKK
Mike, every Sheriff’s department I know of has a work crew department. It is made up of trustees. Actually, for the inmates, this is a coveted assignment because it gets them out of a cell and doing something productive. Usually, these inmate workers are short-timers, and will be released soon.
I was at one large state penitentiary in the deep south one day and noticed a small runway and two Piper Pawnee cropdusters being serviced by guys in prison uniforms. I knew most of the cropduster companies in the areas, so I asked the Warden who he had doing his spraying. He replied that they used inmate labor. I was incredulous. “You mean to tell me you give an inmate an airplane with a full tank of gas and turn him loose?”
The Warden laughed and said that if the charge was not related to drugs or alcohol, the cropduster pilots did not lose their commercial pilot’s license. He then pointed to the fence and commented it was fifteen feet high and fifteen years wide. The pilots were all in for short times, for the most part, and were eager to keep up their skill level, so that when they were released they could go right back to work without extensive retraining.
OS,
Let me also add that my point is that once you allow AAH programs, then as a matter of free speech it is difficult to allow the KKK, Crips, Bloods and/or even Al Qaeda from advertising. Okay, I admit it Al Qaeda was going too far since it is an avowed terrorist organization.
“The Sheriff’s inmate work crews cannot be everywhere.”
OS,
I believe it is government’s job to keep its roads maintained and I also believe that the use of prisoners to do this work is unconscionable and is an incentive to lock people, particularly those of color, up. We disagree on this no doubt. 🙂
Mike,
I think the AoH program was set up initially as a “keep your roads clean of litter” type endeavor. I think that is a good idea. The Sheriff’s inmate work crews cannot be everywhere. Our small county has about a thousand miles of roadways, although I have often said that if it were ironed out flat, it would be the size of Massachusetts. Local businesses and civic organizations participate in the AoH program. Some are better than others about getting out on weekends and doing right of way cleanup, but even a half-hearted effort is better than letting the fast food wrappers and drink cans pile up.
“What if the Crips, Bloods, MS-13 or other gangs wanted to participate?”
OS,
Exactly my point. When I drive, blessed with exceptional peripheral vision, I see virtually everything I drive past. Many of the AOH signs do indeed mark out a territory, if only for a private enterprise and to me government has no call to be involved with such an endeavor.
In case my comment above is mistaken to be that the KKK should not be allowed to spread its hateful message via highway road signs, this is not the case. They have the free speech right to put up all the billboards they want. Lady Bird Johnson “highway beautification initiative” which banned billboards on the Interstates was in my opinion a mistake. As an inveterate “road tripper” I love billboards, road signs and anything interesting thing capturing ones eye as I speed along for miles on the Interstates. They mostly give me a flavor of those communities I’m passing through and inform me of various services that I might want to partake of in a locale I might normally pass through. I distinguish that from this situation since the “Adopt A Highway” program gives the government imprimatur to no-governmental activity.
Mike,
The state is going to have to draw the line somewhere. Your line about marking territory gave me pause. What if the Crips, Bloods, MS-13 or other gangs wanted to participate?
From my perspective there is more than a free speech issue involved here. The first issue is whether Adopt-A-Highway programs are something that government should encourage and allow? I strongly believe that these programs are inimical to the very idea of government in the US. AAH is and always was allowing public roads to be used for private, advertising purposes.
In essence there is a subliminal message being given to the passing driver that flashes quickly across their consciousness. The message satisfies the old PR adage about publicity: All publicity is good as long as the name is spelled right. Subliminally, besides getting the name of the sponsor across, there is also the implied message that this sponsor (advertiser) is one that could be trusted based on their caring for the civic good, i.e. highway maintenance. In a Capitalist system government should not be promoting one company, or cause, above its competitors. Regarding free enterprise government should not play favorites. Maintenance of the common roads should be performed by the government and the delegation of that responsibility to private entities can only lead to unintended consequences such as this.
If this trend is allowed to continue it will inevitably lead to even further encroachments of private enterprise advertising into government business. If government is to defray maintenance costs by allowing private advertisers to chip in so as to get their name in front of the public then we may well see in the near future:
The Kentucky Fried Chicken Lincoln Memorial
The Toyota Washington Monument
The British Petroleum Senate Office Building
The Home Depot White House
The Southern Baptist Conference Supreme Court Building.
The Mormon Pentagon
The White Citizen’s Councils Justice Department Building
The Goldman-Sachs Security and Exchange Commission
For those who would hoist me on my own petard, given my recent guest blog, regarding my “slippery-slope” argument here, I would respond by presenting this specific case as proof that the “slippery-slope” has already occurred and that if the KKK is successful in this endeavor we will have already slid a far way down.
As second issue I would raise is that the posting of these signs on Route 515 would certainly have a chilling effect on me, a Jew who loves road trips, driving through that scenic route. In my hippie youth I drove cross country many times through every one of the continental US States save for Texas, Oklahoma and the Southern States. With my hair down to my shoulders and my full beard I must admit that I was afraid of what might have greeted me, having seen the conclusion of “Easy Rider”. The fact of age, grey hair and a very trimmed beard has cured me for the most part of my “Southern Phobia”,
but even now were I to drive upon a stretch of highway openly “cared for” by the KKK, I admit I’d be hesitant to stop for gas, lunch and/or even a Yard Sale. If I were a person of color it would no doubt have a more chilling affect. Since tourism is an important revenue producer for most states I believe this would be a detriment to the Appalachian Tourism Industry. This then raises the issue of whether government should remain neutral versus competing economic and/or socio/political issues. My contention is that allowing this signage would be a harm to those in that area who rely on tourism.
So finally let’s get to the First Amendment Issue entailed in this situation. I would cite Justice Holmes in Schenck v. United States in 1919:
“The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Now in truth:
“The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current High Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase “shouting fire in a crowded theater” has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are blatantly obvious”.
The KKK has a specific, continual history in the US. It began as a terrorist organization and its current iterations still hold to the belief in the “superiority of the White Race and Christian religion”. To allow it to in effect “mark its’ territory” with road signs declaring their stewardship of a highway” goes beyond the rights guaranteed by free speech. I would defend their right to advertise on billboards or to propagandize using available private means. Despite the cited precedents cited above, I believe that in this type of situation, their Adopting A Highway passes beyond the normal bounds of free speech. In its’ way this case is analogous to “Citizens United” and upholding the Klan would be just as much of a travesty.
I suppose that the road surface in that stretch would have to be made from something other than the usual ……. you know ….. that top stuff.
Otteray Scribe:
we have those in Virginia, Boy Scout Troops do it, corporations, chambers of commerce, etc. I think it is a good idea.
I think I read that Virginia is giving the rights to sponsor roads to whomever has enough money. That is a good idea too. The FEDEX Beltway has a certain ring to it.
Sling — HILARIOUS!!
It’s amazing — whenever govt. wants to deny someone’s rights they figure out how; why all of a sudden do they get too dumb to stone-wall & frustrate?
It could be a great tourism thing.
Rename that stretch of the 515 as the 33/6.
Have burning crosses instead of the standard road lighting.
Have a ‘cyclops’ lane at the side of it for safety.
Service and filling Stations along the route could have signs like “We check under your hood for free”.
During major roadworks, signs could advise that the hold-ups are for Today, Tomorrow and Forever.
That sort of thing
Maybe the situation should be looked at as an example of “government speech”, in which government is free to pick its own viewpoint. In the 2009 case of Pleasant Grove City v. Summum, for example, the Supreme Court held that a city could choose which donations of monuments it would accept, and could base its decision on the basis of content. The question was whether the display would be perceived by an ordinary observer to be an expression of ideas by the government. Couldn’t the adoption of a part of a public highway by the KKK be perceived as an expression of approval by the government?
Bron:
Not sure since I doubt there is a “right” to have your name on the placard. Maybe the state could adopt the position that the program is a privilege and not a right and that it may award it to those organizations meeting its criteria, i.e. non-discriminatory organizations.
Bron, I believe the signs are put up by the state DoT as part of the highway beautification program. All the sponsors are private groups, or even companies. The sponsors pay for the cost of the signs and then are supposed to keep the right of way clean of litter for the stretch of road they have adopted.
I am wondering if the “Adopt a Highway” program has the luxury of being more selective than, say, giving a parade permit. There are only a limited number of roads where they could put up signage. If the state is required to give them a permit, I can think of a few roads the KKK could adopt with fewer repercussions. The state of Georgia has swamps and red clay roads on the back side of nowhere. Anyone want to make a bet on how long the signs will last until they are made unreadable by folks using them for target practice?
mespo:
cant they let them adopt the highway and just not put the sign up? I doubt there is any legal prohibition to refusing to post a sign on the side of a highway. Couldnt the legislature or even the Georgia DOT make it illegal to post signs promoting a private group along that stretch of road?
Or let them post the sign and have state workers go in and plant a big blue spruce right in front of the sign. Problem solved. Or put out a press release that the sign is at this point in the road and that you could understand how that is offensive to most people and how you wouldnt be surprised if the sign was torn down within a week, again problem solved, some one would destroy it. Why worry with the courts?
I’m with you on this one….. It’d be like Terry Jones opposing gays adopting a highway or like opposition to the Islamic Service Center…… You may not like them, they may not be your friends, but we as America’s owe a duty to allow them to be……
Tough call. May a state government deny a group with repugnant views inimical to democracy from participating in a state-sponsored program to clean roads under the US or Georgia Constitutions?
Probably not but I’d make them work for it in court.