Last week, the ACLU of Vermont filed an amicus brief with the Vermont Supreme Court in the case of William Schenk, who was charged with disorderly conduct for allegedly leaving KKK recruitment leaflets at the homes of two Burlington women of color. Given the ACLU's longstanding, firm commitment to advancing racial justice and equality, it is understandable that some people might wonder how we can reconcile those values with our involvement in this case.
First, it's important to emphasize that the ACLU abhors the KKK's hateful ideology and the violence the group has perpetrated. The KKK has a well-known history of murdering, assaulting, and intimidating countless individuals, particularly African Americans, based on their race, religion, sexual orientation, or political beliefs. Few if any groups are more universally despised, and that is for good reason.
Second, because of that history, there is no question that a reasonable person in the recipients' shoes would be alarmed or afraid after receiving a KKK flier on their door. No one should have to endure such an experience.
At the same time, it's a longstanding constitutional principle that unpopular, inflammatory, offensive, vicious, and even hateful speech is protected by the First Amendment. In particular, speech that is political in nature is protected because the First Amendment was designed to "allow free trade in ideas -- even ideas that the overwhelming majority of people might find distasteful or discomforting . . . ." State v. Krijger, 97 A.3d 946, 956 (Conn. 2014) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). Expressive activities such as door-to-door leafletting are also unquestionably protected by the First Amendment.
All speech is protected by the First Amendment, except in narrow and well-defined circumstances. For example, "true threats" do not receive First Amendment protection, and we do not want them to. They cause fear and disrupt people's lives. But to fall under this exception, the threat must be intentionally and knowingly communicated to the target of the threat.
What's critical in this case is that prosecutors failed to produce any evidence that Schenk intended to target the leaflet recipients with threats. Instead, the State argued, and the lower court agreed, that because a "reasonable person" would view delivering KKK fliers as a "gross deviation" from community standards, Schenk's speech was a crime. This means that a person can be convicted of making a "true threat" for doing something the First Amendment protects (targeted door-to-door political leafletting) even when the person intended to communicate only a political idea, not a threat. Such a precedent endangers the First Amendment freedoms of all.
Our brief cites to Virginia v. Black, a 2003 case in which the Supreme Court ruled it unconstitutional to prosecute someone for cross-burning absent clear evidence of intent to threaten. Where evidence is not available to show a person intentionally used political speech to communicate a threat or to mask a threat, the Supreme Court requires courts to err on the side of protecting speech. The same principle applies in this case.
The First Amendment protects all speakers, particularly those expressing political ideas, no matter how despicable they might be. It protects flag burners, Neo-Nazi marchers, civil rights boycotters, and commenters at the Public Service Board alike. For better or worse, the Founders crafted the First Amendment to ensure the unimpeded free trade in ideas -- having faith that "bad" speech would be met with counter speech.
And, in this case, the community's response was exactly what the Founders might have hoped for. After the leaflets were discovered, the community came together to speak out against hate and let the KKK know it was not welcome in Burlington. That was and is the most effective way to publicly challenge and bring down the KKK's racist ideology -- not by criminalizing it.
Throughout its nearly 100-year history, the ACLU has never refused to defend foundational First Amendment values just because the speaker or their speech was unpopular, despicable, or even hateful. Indeed, that is when our advocacy is needed most. The ACLU also works daily to dismantle the institutional racism that still pervades our society and our government. That includes suing police departments for racial profiling and working toward broad and lasting criminal justice reforms. It is critical to recognize that our work to advance racial justice and for strong First Amendment protections are not only not at odds, they are mutually dependent. It is always important to remember that the government has often sought to silence anti-war protesters, trade unionists, and civil rights activists, and that continues: at the same time we are taking the side of free speech in this case, African-American activists in other states are being arrested for making “threats” to police for statements that are obvious political hyperbole. When we defend the First Amendment in this case, we ensure those activists continue to have a voice as well.
History teaches that if constitutional rights can be denied to anyone, they can be -- and will be -- denied to others. If we stand by while the government criminalizes politically unpopular speech, the First Amendment is diminished for us all.
For more information on the ACLU's work around free speech and why we feel it is important to defend unpopular and outrageous speech, please see the links below.
https://www.aclu.org/hate-speech-campus
https://www.aclu.org/issues/free-speech
https://www.aclu.org/news/aclu-statement-defending-free-speech-unpopular-organizations
https://www.aclu.org/blog/speakeasy/protecting-outrageous-offensive-speech
--Jay Diaz, Staff Attorney/Public Advocate
