Challenging state’s criminalization of First Amendment protected leafletting activity as a “true threat” under an unconstitutional intent standard.

We filed an amicus brief in the Vermont Supreme Court in William Schenk’s appeal of his conviction for disorderly conduct arising from his placement of KKK recruitment leaflets in Burlington. While the ACLU does not represent Mr. Schenk and the amicus brief specifically describes the KKK as a “despicable hate group which advocates an abhorrent ideology of white supremacy,” our brief nonetheless advocates in favor of longstanding constitutional principles that extend First Amendment protections to inflammatory, vicious, and even hateful speech, as well as targeted leafletting.

While acknowledging that not all speech is entitled to First Amendment protection, including so-called “true threats,” our brief argues that Schenk’s case does not fall within that narrow exception. The brief cites to Virginia v. Black, a 2003 case in which the U.S. Supreme Court ruled it unconstitutional to prosecute someone for cross-burning absent clear evidence of intent to threaten. We argue that the same principle articulated by the Supreme Court in Black applies to the Schenk case—the state has to prove its case, especially when speech is concerned, and cannot punish speech based on its content.