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The KKK, Vermont and the 1st Amendment

May 9, 2018

William Schenk thought it would be a dandy idea to drop off flyers advertising the Ku Klux Klan at the homes of two women — one a Mexican-American, the other an African-American — in Burlington.  As one would expect from a KKK publication, the flyer was neither tasteful nor subtle; the one-page flyer depicted a hooded and robed Klansman mounted on a horse and holding a burning cross. The Confederate flag and the colonial thirteen-star American flag are shown behind the horse and rider. Across the top of the flyer were the words: “Join the Klan and Save Our Land!!!!” The bottom of the flyer read “United Northern & Southern Knights of the Ku Klux Klan” and included a web address.

The State’s Attorney thought it would be a dandy idea to prosecute Schenk, charging him with two counts of disorderly conduct and, since the underlying crimes were allegedly hate-motivated, seeking enhanced sentencing.

The trial court, too, thought this was all very well and good, and rejected Schenk’s motion to dismiss on the grounds that, well, the First Amendment protects speech that is tasteless and offensive. It’s the price, Schenk’s legal team reasonably argued, that we pay in order to live in a free society.

The trial court sentenced Schenk to 119 to 120 days in jail for exercising his right to express abhorrent sentiments. Schenk appealed, and the Vermont Supreme Court rightfully reversed, though not on constitutional grounds.  The majority held simply that the conduct alleged didn’t violate the statute prohibiting disorderly conduct.

What I am most troubled by, First Amendment absolutist that I am, is that two justices dissented, maintaining both that Schenk’s conduct constituted the sort of “threatening behavior” prohibited by the statute and that it was not protected by the First Amendment.

I don’t think this was close. We are going to be in a lot of trouble when it is left to the State to decide what speech can be criminalized.

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