The Klan seeks an Adopt-a-Highway sign in Georgia

The Georgia State Supreme Court decided last week to hear an appeal in a case about the free speech, the Ku Klux Klan, and the Georgia Adopt-a-Highway program. In 2012, the International Keystone Knights of the Ku Klux Klan (IKKK) sent in an application to participate Georgia’s “Keep Our Mountains Beautiful Program." Under the program, individuals in the IKKK would ensure that a stretch of highway is kept clean in exchange for a roadside sign, which advertised IKKK’s participation in the program.

In a letter to the group telling them that their application had been denied, a Georgia official explaining that the “impact of erecting a sign naming an organization which has a long rooted history of civil disturbance would cause a significant public concern”. The letter went on to explain that the sign could threaten the safety of the travelling public, distract drivers and interfere with the flow of traffic.

Members of the IKKK say that there were just trying to contribute to their community. “We just want to clean up the doggone road”, one member explained, and the group filed a lawsuit in the Georgia state courts with the help of the American Civil Liberties Union.

In their initial brief, the ACLU argued that the denial of the roadside sign amounted to a content-based, unconstitutional restriction of the group’s First Amendment right to free speech. They explained that content based restrictions of speech are subject to strict scrutiny, so in order to be constitutional the state must prove that the regulation is both “necessary to serve a compelling state interest and that it is drawn to achieve that end”. The brief goes on to argue that the criteria for qualification for the Adopt-a-Highway program are “unconstitutionally vague”, and that while the IKKK’s application was rejected, a sign advertising a nearby Wal-Mart was put up under this program.

ACLU officials explain that they are defending the group, not because they agree with the content of the IKKK’s message, but because the First Amendment protects even the most contentious and controversial speech. The executive director of the Georgia ACLU said that they took the case because “is it such a clear violation of the speech rights of the group”.

In 2000, the US Court of Appeals for the Eighth Circuit heard a similar case, in which the Missouri Highway and Transportation Commission denied a KKK affiliate group’s application to participate in the state’s Adopt-a-Highway program. In that case, the government argued, among other things, that allowing the group to participate in the program and allow a roadside sign would amount to a state endorsement of the group and a state action which sanctions discrimination.

The Eighth Circuit ultimately rejected the Missouri’s claims, and decided that their rejection of the application violated the group’s free speech rights. The decision concluded by noting that there many constitutionally sound ways for state officials to express their disapproval of the Klan’s message. However, “viewpoint based exclusion…from a government program is not a constitutionally permitted means of expressing disapproval of ideas – even very poor ideas – that the government disfavors”.

In the present case, the state of Georgia is putting forth a similar argument to the one that ultimately failed Missouri. Government lawyers wrote that the signs are a “quintessential method used by governments to communicate with the public”, and state Rep. Tyrone Brooks said that the state is “complicit” with the KKK if it approves the application.

This argument might have greater force than it did in 2000 in light of the Supreme Court’s ruling last term in Walker v. Texas Division, Sons of Confederate Veterans. At issue in that case was Texas’ rejection of a license plate design which included the Confederate flag. Texas argued that allowing that sort of speech on a license plate amounted to a state endorsement of the speech, while the Sons of Confederate Veterans protested that the rejection was government censorship of private speech.

Justice Breyer explained in his majority opinion that the designs on the license plate amounted to government speech, and therefore could be rejected. He reasoned that “just as Texas cannot force a private citizen to convey on his or her license plate a message with which he or she does not agree, so the Sons of Confederate Veterans cannot force Texas to convey on its license plate a message with which the state does not agree”.

While the actual facts of the Georgia case might seem insignificant – does it really matter whether the KKK can put up one sign next to a Georgia highway – it is an important part of the currently unfolding debate about the relationship between private speech, government speech, and the First Amendment. The broader an understanding of what amounts to government speech that courts adopt, the more courts may allow the state to restrict expression based on the content of that speech.

Jonathan Stahl is an intern at the National Constitution Center. He is also a senior at the University of Pennsylvania, majoring in politics, philosophy and economics.