Hot Docs: Court allows KKK to place leaflets on cars

October 4, 2012

Car flyerConstitutional rights are often defended in court by less than ideal champions.

In criminal law, for example, case law – including U.S. Supreme Court rulings – that explicitly specify our constitutional protections against unreasonable searches and seizures and self-incrimination almost never involve wrongfully-accused defendants.

However, if not for these struggles by criminal defendants, the rights that the rest of us enjoy under the Fourth and Fifth Amendments may be far more limited.

The same principle applies to the First Amendment.

Often, the party seeking to challenge free speech restrictions are those whose speech is “repugnant” to much of the rest of society.

Last week’s ruling out of the U.S. District Court for the Eastern District of Missouri is an example of such a case.

The party challenging the speech restriction in that case is none other than the Ku Klux Klan (KKK).

The restriction is a city ordinance of Cape Girardeau, Missouri.

The ordinance prohibits the “throw[ing] or deposit[ing] [of] any handbill in or upon any vehicle” unless an occupant of the vehicle is willing to accept it.

The KKK brought the action because the organization was planning to distribute leaflets on vehicles at the end of September, and its members were afraid that they would be penalized by the ordinance if they proceeded with the plans.

As such, they not only asked for the court to invalidate the law, they asked for a temporary injunction precluding the enforcement of the ordinance.

This ruling is the result of the latter motion.

To actually succeed in getting the injunction, the KKK had to show that it would suffer “irreparable harm,” that this harm is greater than any harm suffered by the city if the court were to issue the injunction, and that the KKK will likely succeed on the case’s merits.

In addition, the KKK also has to show that the injunction would serve the “public interest.”

Hot Doc: Traditionalist Am. Knights of the Ku Klux Klan v. City of Cape Girardeau, Mo.

Source: Thomson Reuters News & Insight – National Litigation

The court quickly found that the “irreparable harm” of the KKK members’ risking arrest outweighed the city’s interest in preventing littering.

Since the court noted that “it is always in the public interest to protect constitutional rights,” the final question for the court to determine was whether the KKK would succeed on the merits and show that the ordinance, in fact, infringed on the organization’s constitutional speech rights.

Because this case took place in the Eighth Circuit, the outcome was already predetermined because of Krantz v. City of Fort Smith, a 1998 appeals court ruling within that circuit.

Krantz’s holding applied almost exactly to the KKK’s case: the ruling “struck down similar ordinances that prohibited placing a handbill on any other person’s vehicle parked on public property within city limits, unless an occupant of the vehicle was willing to accept the handbill.”

Although the city tried to get the court to use the 2005 Sixth Circuit case Jobe v. City of Catlettsburg – which held the opposite as Krantz, the court in this case was bound by the appeals court ruling within its own circuit.

Thus, the court granted the injunction (but not before clarifying that it viewed the KKK’s views as “repugnant”).

Regardless of how repugnant its views may be, the KKK’s efforts are responsible for extending new free speech protections to everyone in the city of Cape Girardeau – an accomplishment that I certainly wouldn’t regard as repugnant.