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FindLaw's Julie Hilden On The KKK's Freedom of Speech
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FindLaw columnist and attorney Julie Hilden writes frequently on First Amendment law and specialized in such issues as an associate at the Washington firm of Williams & Connolly from 1996-99. A graduate of Yale Law School, she is the author of the memoir "The Bad Daughter." Hilden joined Law Chat by telephone from New York on Wednesday, March 7, 2001, to discuss the fact that Missouri must allow the Ku Klux Klan to participate in its Adopt-A-Highway cleanup program after the U.S. Supreme Court declined to hear the state's appeal this week. Law Chat is produced with FindLaw. Hilden typed for herself. The following is an edited transcript of the chat.
CNN Host: Thank you for joining us today, Julie Hilden, and welcome.
Julie Hilden: Hello to everyone.
CNN Host: The Supreme Court declined to hear this case, upholding the U.S. 8th Circuit Court of Appeals opinion. What does this mean?
Julie Hilden: It's always difficult to interpret when the court declines review. However, I speculate that it thinks this is a case that, while controversial, does not raise legal questions that are new.
The court in past years has decided several cases about whether groups can exclude members based on whether they are homosexual. The court has held that they can, in the Boy Scouts and St. Patrick's Day parade cases.
So some argue this is not a new question: If the Klan has the right to discriminate, then the government cannot punish them for exercising that right by excluding them from the Adopt-A-Highway program. However, I think the case does raise a new question, because I think the highway signs the government erects to honor Adopt-A-Highway participants are "government" speech.
Question from Chat Room: Does this case cause problems for letting the KKK into other areas?
Julie Hilden: Potentially, it could be a precedent of wide applicability. Of course, the only opinion is a federal appellate opinion, which has less weight than a Supreme Court opinion. Also, the Clinton Justice Department was clear that it thought that opinion was badly reasoned.
However, assuming the lower court opinion was right, it would imply the Klan could not be excluded from a number of federal programs if the reason for the exclusion was the Klan's beliefs. (Missouri admitted it had excluded the Klan based on its beliefs, according to the court).
CNN Host: What are the 8th Circuit Court's arguments? Why is this constitutional?
Julie Hilden: The 8th Circuit invoked a doctrine called the "unconstitutional conditions" doctrine. That doctrine says that you can't deny someone a government benefit based on the exercise of a constitutional right. Earlier Supreme Court opinions had said that there is a First Amendment right of an organization to define its own membership. So the 8th Circuit reasoned the Klan could not be punished for the exercise of that right.
The 8th Circuit also rejected arguments that it discriminated against other Missouri citizens to allow the Klan to participate in Adopt-A-Highway. The law is somewhat technical, but essentially the 8th Circuit held that the Klan's discrimination could not be imputed to the state of Missouri just because the Klan participated in Adopt-A-Highway.
There is precedent saying a restaurant in a public building cannot discriminate, but the 8th Circuit said the Adopt-A-Highway program was not accommodating the Klan in the same way a public building accommodates a restaurant.
Question from Chat Room: Will the KKK members be wearing their hoods while they are cleaning up the highway?
Julie Hilden: Good question -- I don't know the answer -- but it raises what I think is an important point about the case. If they did wear their hoods, it would send a message -- and similarly, I think the sign that honors participants in the program sends a message too.
And I think the government, while it cannot tell private groups what message to send, should be able to control government-sponsored messages like the highway sign. So the interesting question is, If the Klan wore hoods, would it look like a racist message sent by the government? And similarly, does the sign seem like a racist message?
CNN Host: Was the Klan's intent in adopting this particular segment of highway an effort to intimidate black students who were being bused along that section of road to schools in St. Louis?
Julie Hilden: All I can tell you is what the Klan claimed in litigation, which was that they wanted to send the message that they were environmentalists and altruists by participating in the program. I find it hard to believe, however, that the Klan wouldn't know the sign commemorating their work would be intimidating, particularly to African-American students.
Question from Chat Room: Julie, is there any doctrine or precedent that addresses offensive or inflammatory nature of acts or groups that could relate to this case?
Julie Hilden: It depends on what you mean by "offensive or inflammatory." If the acts count as speech, there is nothing the government can do unless there is a clear and present danger (more or less). But the government can certainly act to address actions.
Indeed, Missouri tried to justify excluding the Klan based on the Klan's history of violence. But the court held that was a pretext. Missouri, according to the court, was really excluding the Klan based on its beliefs.
The problem for Missouri was that it did not come up with criteria for participation in Adopt-A-Highway until AFTER the state was sued. So to the court, it all seemed like a rationalization for what they wanted to do: Exclude the Klan.
CNN Host: Other states have prohibited the KKK from similar speech. What is different in this state, and can the decisions of other states now be challenged?
Julie Hilden: It is possible that other states could avoid a similar ruling by basing their exclusion of the Klan on its history of violence, not on its beliefs. Certainly, it is not punishing someone based on a First Amendment right if you deny them a benefit based on their history of violence.
For example, Missouri could probably have constitutionally excluded felons who had committed violent crimes from Adopt-A-Highway. The problem in Missouri's case was that they were obviously punishing based on speech.
Question from Chat Room: What is your analysis of the comparison to the Boy Scouts under BSA v. Dale (2000)?
Julie Hilden: The U.S. Supreme Court held (5-4) that that was OK, because the Scouts claimed that their "message" disparaged homosexual conduct, and that having the scout leader, Dale, as a scout interfered with the message. Presumably, under this precedent, an African-American could not join the Klan even if the state in which he or she was living had an anti-discrimination statute (as Dale's did).
And, as I mentioned before, if the Klan has a First Amendment right to define its own membership, and to speak in whatever way it chooses, including urging racism, then the 8th Circuit held that a government benefit (participation in the Adopt-A-Highway program) cannot be withdrawn based on the exercise of those rights.
In summary, the 8th Circuit decision piggybacks on cases like Dale and extends them. It also raises a few questions Dale did not raise: a government speech question (the highway sign) and a question whether Missouri itself is discriminating by including the Klan in the program. The Justice Department argued in an amicus brief that it was.
CNN Host: Do you believe the Supreme Court should have heard this case?
Julie Hilden: Yes, I think the court should have heard it. The reason the Court might not have done so is that it is too similar to the Boy Scouts case. But in fact, I think it is an interesting intersection of anti-discrimination law, government speech law, and First Amendment law. Also, I do think that the decision has some national importance in that there will be other government programs that groups try to have access to.
CNN Host: Do you have any final thoughts to share with us today?
Julie Hilden: Many of the most interesting constitutional law cases involve one right bumping up against another. That is more or less the case here -- Congress prohibited discrimination, enforcing the 14th Amendment, and Missouri tried to comply by excluding the Klan, which discriminates. But the Klan's First Amendment right got in the way.
This is a difficult case because it poses a classic liberty/equality clash: the Klan's liberty to define its membership and speak as it likes versus Missouri's attempt to promote equality and stamp out race and other forms of discrimination.
CNN Host: Thank you for joining us today.
Julie Hilden: Goodbye, everyone.
