Robert Herman: Free speech and the Klu Klux Klan

Robert Herman

On Monday, March 5, the United States Supreme Court denied without comment an appeal by the state of Missouri which argued that the state should be permitted to bar the Klan from participating in the state's adopt-a-highway program because it bars blacks and other minorities from membership. The Court's denial lets stand a decision by the U.S. Court of Appeals for the Eighth Circuit, which said the state must permit the Klan to participate in its highway program.

Robert Herman is Cooperating Counsel for the American Civil Liberties Union for the Eastern District of Missouri.

CNN Moderator: What are the main issues involved in First Amendment rights when applied to unpopular groups?

FULL TEXT 8th U.S. Circuit Court of Appeals opinion (Findlaw) Cuffley v. Mickes

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Robert Herman: The main issue has always been the extent to which government may punish people for engaging in unpopular speech. The First Amendment denies government the right to punish or exclude from government benefits anyone who exercises his First Amendment Freedoms. This case has never been about the promotion of the Ku Klux Klan (KKK or Klan) or any other hate speech. This case has always been about whether it is appropriate for the government to determine what speech is acceptable or whether that question is reserved to the citizens of the United States.

From the chat room: What is the socio-political climate like in the state, among citizens, concerning this issue?

Robert Herman: The local newspaper came out in favor of allowing the Klan into the Adopt-a-Highway program. There is a large and ongoing misunderstanding in regards to what this case is about. When it is explained to people that all the Klan wanted was not to be treated differently, they seemed to understand and accept that it's necessary to accept their presence. Any law that would allow the state to bar the Klan from a government program because its politics were found to be offensive could also be turned on any other political group which may at the time be unpopular. In fact, the argument that the state is making in this case is the same argument that southern states used in their attempt to keep the NAACP and Martin Luther King from marching in Alabama or Mississippi. At that time, those states categorized Martin Luther King's speech as "hate speech" and speech that would be offensive to much of the community. It took Supreme Court action to secure the rights of those groups we now recognize were freedom fighters. I guess this boils down to the fact that the question of hate speech is a political question that should be reserved for the people and not the government. To prove this, ask yourself whether Yasser Arafat is a freedom fighter or whether he engages in hate speech. It's easy to recognize this is a cultural and political issue that must be determined by the people, not the government. No one is arguing that the Klan's ideas should be accepted, except for the Klan maybe. All the ALCU or I have ever argued is that the validity of those ideas should be determined by everyday citizens, not judged solely by the government.

From the chat room: If an organization such as KKK discriminates against race, creed or color, why should they be allowed to participate in government programs such as road adoptions? Don't clubs loose certain government benefits if they refuse to admit minorities?

Robert Herman: Not every act of discrimination is prohibited. The perfect example of this is the Boy Scouts. Last year, the Court ruled that the organization was entitled to discriminate on the basis of religious belief, sex and sexual orientation. The courts that have ruled in the Klan case found that other groups which have discriminated against sex and religion could participate in the adopt a highway program without any comments from the state. The courts held that the state's excuse of targeting discrimination in Klan membership was merely a pretext that is a smoke screen to cover their true target of the Klan's philosophy.

From the chat room: Is it not interesting that they wish to adopt a stretch of highway that is used to bus black students under desegregation laws?

Robert Herman: That argument was made by the highway department. First of all, St. Louis highways are used to bus desegregated students. Secondly, the question of whether people would be offended by the adoption ( speech ) is not a legitimate viewpoint. It is not a neutral reason for denying an organization its Constitutional rights. The fact is that democracy is not painless. The First Amendment places a burden on us all as citizens to resist and speak out against offensive viewpoints. The trade off of living in a pain free society where we don't have to encounter offensive ideas is not worth the loss of freedom that that would entail.

CNN Moderator: Do you have any final thoughts to share with us?

Robert Herman: The First Amendment is necessary as a societal pressure relief valve. It is a stabilizing influence. The cost of having to listen to groups that preach offensive ideas and having to respond to those offensive ideas, is greatly outweighed by the benefit to society of allowing dissidents to "get it off their chest" and subjecting them to the harsh realities of the marketplace of ideas. This has worked for over 200 years. There is no reason to change course now.

CNN Moderator: Thank you for joining us today

Robert Herman: Thanks for the opportunity to present this case to you.

Robert Herman joined the chat room from St. Louis, Missouri; CNN.com provided a typist. The above is an edited transcript of the chat which took place on Wednesday, March 7, at 1 p.m. EST.

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March 5, 2001
High court allows KKK to adopt a highway
March 5, 2001

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