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| 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.”
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| Unite States' Brief to the Supreme Court |
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.
