19 June 2012

Cross Talk

Justice Oliver Wendell Holmes, Jr.
Hard cases make bad law.
                  Justice Oliver Wendell Holmes, Jr.
                  Northern Securities Co. v. United States
                 193 U.S. 197 (Supreme Court, 1904)

“Have you never —” said Sherlock Holmes, bending forward and sinking his voice —“have you never heard of the Ku Klux Klan?”
“I never have.”
Holmes turned over the leaves of the book upon his knee. “Here it is,” said he presently:
“Ku Klux Klan. A name derived from the fanciful resemblance to the sound produced by cocking a rifle. This terrible secret society was formed by some ex-Confederate soldiers in the Southern states after the Civil War, and it rapidly formed local branches in different parts of the country, notably in Tennessee, Louisiana, the Carolinas, Georgia, and Florida. Its power was used for political purposes, principally for the terrorizing of the negro voters and the murdering and driving from the country of those who were opposed to its views. Its outrages were usually preceded by a warning sent to the marked man in some fantastic but generally recognized shape — a sprig of oak-leaves in some parts, melon seeds or orange pips in others. On receiving this the victim might either openly abjure his former ways, or might fly from the country. If he braved the matter out, death would unfailingly come upon him, and usually in some strange and unforeseen manner. So perfect was the organization of the society, and so systematic its methods, that there is hardly a case upon record where any man succeeded in braving it with impunity, or in which any of its outrages were traced home to the perpetrators. For some years the organization flourished in spite of the efforts of the United States government and of the better classes of the community in the South. Eventually, in the year 1869, the movement rather suddenly collapsed, although there have been sporadic outbreaks of the same sort since that date.”

                                                                           The Five Orange Pips
                                                                           Arthur Conan Doyle

    An Associated Press article caught my eye last week and propelled me back to the days, pre-retirement, when I was Deputy Assistant General Counsel for Litigation at the United States Department of Transportation.  The story involved the State of Georgia’s ruminations concerning what to do about an application filed by the Ku Klux Klan to participate in the Georgia adopt-a-highway program. 

    “Wait,” I hear you asking.  “What has this to do with mysteries, or with writing?”  At least tangentially the answer might be “quite a bit.”  This request by the Klan to participate in State-run programs that clean the nation’s highways through voluntary participation by local groups is not the first.  Over the past fifteen years  the Klan has repeatedly sought entry into the adopt-a-highway programs arguing that it has a right to participate  In a nutshell, the Klan’s argument is that they have a Constitutional right to participate in the program, and to have the State erect a road-side sign proclaiming that participation, under the First Amendment, which provides that the State shall enact no law abridging a party’s right to free expression.  The Klan argues that it is entitled to show and communicate to all that it is a “good citizen,” that it deserves to participate in the program on an equal footing with other organizations and that it is entitled to have its participation communicated to the general public on a road side sign erected by the State.   

    The adage quoted above from Justice Holmes got it completely correct.  This issue is a tough one, and its solution could spark unforeseen consequences.  Putting my cards on the table, I am a liberal.  And I think, as a liberal writer, that the First Amendment should be given the widest coverage possible.  The protection of the freely-written word is the hallmark of an open,  thinking and questioning society.  And the antithesis?  Well, we know from history what to expect of societies that burn books.  Oliver Wendell Holmes also wrote the following:  “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate.”

    But, not unsurprisingly, I (like Sherlock Holmes in The Five Orange Pips where one of the first references to the Klan appears) am no fan of the Ku Klux Klan.  I certainly do not welcome the Klan's participation in any State program.  And yet I recognize that this puts me on the wrong side of the second Holmes quote – my gut reaction is to bar them “for the thought that [I] hate.” 

Unite States' Brief to the Supreme Court

    So should Georgia simply grant the Klan’s application?  On further analysis the issue becomes even more complicated.  While in the government I had the opportunity to work on all of the prior adopt-a-highway cases involving Klan petitions.  I was the Deputy in the Department of Transportation’s litigation office, and that got me a ticket to the adopt-a-highway ball.  In my current status, that of “recovering attorney,” I am not privy to the particular stretch of Georgia highway that has now attracted the Klan’s attention.  But I know the stretches that they have tried to adopt in the past.

    In 1995 the Klan decided it would like to “police” a stretch of highway in front of a public housing project in Houston, Texas that was the subject of a desegregation order.  The Klan had already spearheaded a series of violent confrontations at the complex and had been enjoined by court order from being anywhere near the complex.  The petition to “police” the Texas highway was for the same stretch that the Klan was otherwise barred from.  The next mile that the Klan wanted to adopt was in downtown St. Louis Missouri – right in front of one of the oldest predominantly Black churches in the city.  Then they asked for a second mile in down-state Missouri – right in front of the home of a family that had adopted an oriental child (quite the “no-no” from the Klan’s perspective).   One can easily come away with the conclusion that these applications are not just about the Klan showing that it wants to be a good citizen.

    So the issue is the quintessential “hard case.”  On the one hand, a State government is understandably loath to turn these miles over to the Klan to patrol while gathering litter, and then also erect a State sign, for all to see, proclaiming the Klan’s participation in the State program.  On the other hand, denying these applications risks cutting back on the wide breadth of free expression guaranteed to all under the First Amendment, and does so on the basis (come on, let’s admit it) that we “hate” (there’s Justice Holmes’ word again) the whole reason for the existence of the Klan.

    In prior litigation raising these issues the United States was not a direct party – the adopt-a-highway programs are not Federal programs, they are administered by States.  The participation by the United States, therefore, was as amicus curiae – “friend of the court.”  In each case the United States attempted to walk a fine line – arguing that the Klan could be barred from the program while still protecting the breadth of the First Amendment.  The approach was successful in Texas, where the State's denial of the Klan’s petition to participate in the program was upheld, but unsuccessful in Missouri, where the United States Court of Appeals for the Eighth Circuit held that the State’s denial abridged the Klan’s First Amendment rights to free speech and free expression.   While the Associate Press article referenced above states that the Supreme Court agreed with that proposition, this was not in fact correct.  Rather, and despite the United States’ arguments to the contrary, the Supreme Court refused to hear the case at all, thereby leaving the Eighth Circuit decision in place and unreviewed.

    What is the best way to untie this Gordian knot?  I don’t know.  This is going to be one of those mysteries that presently remains unsolved and is therefore something for each of us to ponder.

     One possible solution (and my own view on the issue) is a little “out of the box.”  When I was involved in these cases I used to argue (without a lot of success) that what is called for here is a slightly new approach to the First Amendment.  What speech are we talking about here, really?  We are talking about a sign, erected by the State, proclaiming that an organization has undertaken to police a stretch of State road in order to control litter.  Who is speaking here?  I would argue that the speaker is the State, not the organization.  It is, after all, the State that erects the sign and the State that decides what the message on the sign will be.  A limited number of cases have recognized that States, as well as individuals, have freedom of speech rights.  Can the State be compelled to erect a sign on behalf of the Klan? Doesn't this deprive the State of its own freedom of speech, it's own authority to not participate in the activities of the Klan?

    And what does that compelled State action do to other affected parties?  If you were driving down a highway and saw a sign that said “McDonalds Restaurants ahead:  1 mile, 12 miles” and then you saw a sign that said that the next mile of highway had been adopted by the Ku Klux Klan, at  which of those two McDonalds restaurants would you be inclined to stop for lunch?  I don’t know about you, but I would drive the extra 11 miles.  Is this fair to the McDonalds that happens to be located on the mile allowed by the State to be patrolled by the Klan?

    The particular mile that the Klan adopted in St. Louis, in addition to its proximity to that historic Black church, also is in front of the Anheuser Busch Brewery.  Should the brewery bear the commercial costs that might be associated with a picture showing both that State erected sign and the entrance to the brewery’s corporate headquarters, all in the same shot? 

    It seems to me that it is one thing for the Klan to have a right to express its views, even if (using Justice Holmes’ word) we “hate” those views.  But it is another thing entirely to say that the Klan has the ability to compel a State to participate, through the erection of a State-funded sign, in the dissemination of those views.  On this one, I am with Sherlock.  We know with what we are dealing.

    Just sayin.


  1. To me, the KKK fails the good citizenship test which, in my view should make it ineligible.

    Neo-Nazi groups have been very clever. For example, the KKK bought MartinLutherKing.org, which originally pretended to be an educational site (and still has children's pages and downloads for flyers to be distributed in schools. Through SEO manipulation, their web site tracks well above the official MLK web sites.

    Much of the anti-immigrant propaganda (pretending to be university studies or articles from the LA Times) comes out of Georgia neo-Nazi groups. I can't begin to guess how much anti-Obama crap flows from the same sewers, stuff we see in eMails every day passed on and on.

    A glance at StormFront.org shows how sophisticated they've become, how they've learned from past mistakes. The sad thing is these's aren't stupid people; indeed, a certain evil genius underlies these programs, but something has corrupted, some mental carcinoma has affected a few who otherwise could become great men. With his charisma, good looks, and speaking ability, can you imagine what poster boy David Duke could have become if he'd chosen the path of goodness and light instead of darkness?

  2. Good points.
    and it maybe points up the danger of continually outsourcing public functions to volunteer organizations who use them as propaganda.

  3. David Duke came darned close as it was. He was, for a while a serious political contender. And it's amazing what's been crawling out of the woodwork up here in local elections - not KKK, but militia / strawman / expatriat thinking, much of which is HUGELY influenced by the Aryan Nation, which... The whole network is a lot more like Moriarity than people think: tentacles everywhere.

  4. Eve -- The Moriarty comparison is interesting. When I was writing today's piece I went searching for the Sherlock Holmes quote. I originally remembered it as coming from The Valley of Fear, not the Five Orange Pips. The Valley of Fear is, of course, the story that concludes with Holmes observation that Moriarty is everywhere, behind all things evil.

  5. In Schenck v.the United States (1919), Oliver Wendell Holmes also opined that "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." The clear implication is that 1st Amendment does not protect that speech when it has a harmful effect on public safety. I don't know that this rises to the same level, but the point is clear that there is no such thing as an absolute right to free speech.

    Doyle was wrong about the etymology of "Ku Klux Klan". The society named itself after the Greek work kuklos, meaning circle, which it adopted from a pre-War secret society called the Knights of the Golden Circle, dedicated to the annexation of Mexico into the U.S. When the Civil War erupted, they switched their allegiance to the Confederacy.

  6. Greetings, James!

    My brother, Glen, has a book published in the 1800s about the origin of the Klan and warning of its dangers. Unfortunately I haven't been able to get my hands on it.

    Dale, it was only after a second visit I got the pun in your title. Very clever!

  7. Hi to James! Typical that you would be able to correct Doyle!

    There is a doctrine in First Amendment law of "fighting words," things that are so inflammatory that the utterance of them is not protected. I always thought that something could have been made of the Doyle reference if the name DID derive from a cocking gun.

    Leigh -- re the pun: yeah, after three straight humor articles I thought I ought to at least lead with something with a double meaning.

  8. Being very nearly a libertarian, myself, I find this a very thorny question indeed.

    However, something inside me says it would be great to be a member of that black church’s congregation, if the Klan were granted the right to pick up trash along the roadway. I think, being the sort of person I am, I’d convince my friends to join me in always saving up our week’s worth of garbage, to spill along that section of roadway while on the way to church each Sunday.

    It might be nice to grab a beer at the Anheuser Busch Brewery across the street and drink it with my friends, while sitting on the porch of the church. Something tells me it would be nice to be a black man, sitting with friends (with automatic weapons clearly on display in our laps, naturally), watching idiots in little pointy hats pick up the garbage we had deposited for their benefit. Indeed, I think it would be hard to resist the urge to occasionally point out: “Hey, buddy! You missed a piece, there.”

    Just a thought.

  9. (laughing) I like that.

    Dixon, the Libertarian party here in Florida is so disappointing. When interviewed about their platform, they usually go "Like wow, man, like we believe in, wow… Do you see those colors? What was the question? Oh, we wanna decriminal drugs, man. And uh, oh yeah, like, we wanna make legal dope, man. Wow, it's so colorful, dude."

  10. Leigh, I'm rolling on the floor, out here in Scottsdale, after reading your latest comment. And, thank you for outlining the reason why I'm very nearly a libertarian -- but avoid it! LOL

  11. To my way of thinking the Klan is like the Nazis. The latter have been tried and convicted of such heinous crimes as genocide and have forfeited (or should have forfeited)first amendment rights. The fact that they are still allowed to march and demonstrate is a slap in the face of civilized people. The Klan has been found guilty of burnings, lynchings, etc. and have been discredited if not convicted.
    I realize I would be laughed out of court if I presented this argument. But I am reasonably certain that the majority of Americans feel the way I do. And I'm equally certain they would be outraged to see a sign advertising the Klan as adopters of highways. In extreme cases there could be "accidents" by drivers losing control of their cars on these stretches. Don't laugh. It could happen. I don't advocate such behavior, mind you. But I won't judge it either.

    Great article, Dale.

  12. Actually, one of the reasons that States have cited in denying Klan participation is that the miles adopted by the Klan could become "trash magnates" -- where everyone dumps out of protest. An argument that the United States has argued in these cases is that any State taking Federal funds has to guarantee that everyone the State contracts with must have racially neutral membership requirements. The Klan does not, so it can't participate. Like so many easy solutions however, this invites future application difficulties -- do you want to ban Hispanic organizations from Federal programs? What about black fraternities? It is very difficult to craft a rule that keeps the Klan out but that can be administered equally as to all other groups.

  13. I had to calm my nerves before commenting on your post because any time I read about the Klan I get angry. My first reaction when I read the story was that their participation should be denied. And yet, they do have freedom of speech, so let them participate but make them pay for the sign. And pray that some Black person or persons don’t come along, get out of their car or cars and start a fight, which would be my first thought if I saw them on the side of the road. Not saying I would but I sure would be thinking about it.

  14. Dixon, it may be the reason Ayn Rand never joined the Libertarian Party, kind of like "What have you done with my great ideas?"

    Herschel, you make an excellent point. Germany has taken a similar approach, outlawing the Nazi Party, Nazi symbols, and songs. Naturally neo-Nazis took exception, which is why you see such things as 3-pronged swastikas.

    Louis, it makes us angry and I don't have the weight of history of having lived under the Klan and Jim Crow laws.

    Dale, thanks for a thoughtful and challenging article.

  15. We all hate the Klan, we all hate everything they stand for. But many hate the Boy Scouts, and many hate the position the Scouts take on a number of issues.

    Should the state refuse the Scouts because of this? Should the state allow the Boy Scouts to adopt a mile of highway, would this not place them in a position of agreeing with Scout policy, such as homosexuality, than many find repugnant?

    "Gordian Knot" usually means "I don't agree with letting THEM do something because I don't like them."

    Free speech is for everyone or no one. So are road signs saying this group or that group has adopted a mile of highway.

    Get creative. Just have the state put its own free speech message above the sign, or even on the sign. "The bloody, racist, evil Ku Klux Klan has adopted this mile of highway.

    The Klan might withdraw it's petition.

  16. Well said, James. Get creative, indeed.


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