By Alex Estroff
In May 2012, April Chambers and Harley Hanson submitted an application to the Georgia Department of Transportation to participate in its Adopt-a-Highway program, which allows any organization, family, or business to be responsible for cleaning up litter along a stretch of a highway. In return for its volunteerism, the group receives a sign that is erected alongside their “adopted” road with their name on it to recognize its services. A month later, Chambers and Hanson received a letter from GDOT stating that their application was rejected because their participation would “create the potential for social unrest.” The reason why? Chambers and Hanson wanted their sign to recognize the International Keystone Knights of the Ku Klux Klan.
“The First Amendment to the Constitution was not written to protect speech that we are comfortable with.”
The Georgia KKK chapter immediately took legal action, suing the State on First Amendment grounds. The American Civil Liberties Union argued, on behalf of the infamously racist group, that the State denied their application simply because it disagreed with its message, which clearly infringes upon their right to free speech. This past February, after the State’s appeal of the initial ruling in favor of the KKK, the Georgia Supreme Court heard the case. At the hearing, the Georgia Attorney General argued that the State could not be sued for its denial of the group’s application for two central reasons: the doctrine of , and because the road signs constitute government speech, the State is entitled to choose which messages it wishes to be associated with. Sovereign immunity, somewhat of a legal gray area, states that the government is immune from lawsuits unless it first consents to them. This doctrine has historically been used to shield the government from trivial suits that resulted from the government’s day-to-day activities. While there is no clear cut definition for when sovereign immunity can be applied, historical precedents support that the State should be subject to litigation concerning constitutional matters. Furthermore, the Georgia KKK chapter absolutely reserves the right to participate in the Adopt-a-Highway program, no matter how repugnant its messages are.
The First Amendment to the Constitution was not written to protect speech that we are comfortable with. When the Due Process clause of the Fourteenth Amendment required even state laws to be in accordance with the Bill of Rights, it became clear that certain individual rights, particularly that of free speech, were never meant to be taken. As backward as it may seem, the constitutional protection afforded to a group who wishes to promulgate a message of peace and equality is the same one given to a discriminatory group that stands for the exact opposite of that. To fully understand why the KKK should not be barred from participating in this government program, one must look to a 1969 Supreme Court case that involves, quite ironically, a black civil rights group.
In 1963, with racial tensions at volatile levels, Reverend Fred Shuttlesworth requested a license from the city of Birmingham, AL to lead a peaceful civil rights march on the public streets of the city. A city officials to deny any parade request that they deemed to be harmful to the “public welfare,” “morals,” or “good order” of the community. Birmingham city officials, presumably not the most progressive folks in the country, turned down Shuttlesworth’s request on that basis. Six years later, the Supreme Court, in Shuttlesworth v. Birmingham, ruled that this licensing ordinance was an egregious violation of the Constitution. Justice Stewart wrote that this ordinance allowed “officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade, according to their own opinions.” Today, the Supreme Court has come to the conclusion that it is okay for government bodies to issue such licenses only if they are objectively given based on protecting public safety and not the content of the parade’s speech, a standard that is subject to very careful scrutiny.
Upon its launch in 1989, Georgia’s Adopt-a-Highway program created a forum of expression open to any group that satisfied the roadside cleanup requirements. By virtue of this fact, state officials should not be able to freely choose which messages are conveyed. Just as the city of Birmingham denied Reverend Shuttlesworth’s application based on the content of the speech he wished to express in a parade, the Georgia Department of Transportation discriminated against a message the Georgia KKK chapter wished to articulate in a public forum. In this case, the KKK did not wish to convey any particular message , but rather just its name. With the absence of an actual message, a legitimate threat to public safety seems unfathomable . And even if their name alone constitutes a message, it is not up to the government to decide which messages are appropriate for public display. For some, the KKK’s name on a roadway sign may be just as offensive as the name of a church that preaches anti-homosexual messages, to which GDOT has had no problem granting licenses in the past. Simply put, because everyone holds different beliefs, the government cannot ban certain speech based simply on its subjective degree of “offensiveness.”
Just as sovereign immunity did not protect the city of Birmingham from being sued on free speech grounds, Georgia should not be exempt either. The ACLU argues that if sovereign immunity blocked the State from First Amendment liability, “there would be no mechanism for citizens to defend or for courts to enforce these most cherished freedoms.” It is evident that this sovereign immunity defense is merely an attempt by the State to avoid this constitutional litigation, veiled by an ill-fitting legal doctrine.
The State’s second defense is equally feeble. The Attorney General asserts that the State is justified in choosing which speech it wishes to express in the Adopt-a-Highway program because these signs constitute government speech, and the government ostensibly does not wish to associate itself with the KKK. Yet if these signs are to be considered government speech, so must be a march in a public park by a group who believes Justin Bieber is a communist spy. In both cases, private individuals are borrowing government services provided to all citizens in order to express their own personal views. And it is equally absurd in both cases to confuse the speech of a private group for that of the government. Just because a group is using a government-funded park to articulate its beliefs on pop star espionage, it is highly unlikely anyone would mistake those beliefs as those of the government.
“Though it may be a reasonably founded fear, when this sort of language is employed by the government as a means of banning certain speakers, those are the speakers that typically need the full protection of the First Amendment the most.”
Some may argue that there is a distinction between these two examples in that Georgia’s name would accompany the KKK’s on these roadside signs, while, even though they are funded by taxpayers, public parks are not immediately associated with the government. However, the fear of being directly associated with a controversial message did not deter Georgia in 2007, when it began issuing anti-abortion license plate tags. The tags display the phrase “Choose Life” opposite the state’s name (just like the Adopt-a-Highway signs). And despite the message’s potential for offensiveness toward pro-choice Georgians, the State has found no issue in disseminating these plates.
The fact of the matter is that Georgia created a forum for expression with its Adopt-a-Highway program, like that which exists in any park or sidewalk. In such forums, the government may not exclude certain speakers based on the content of their messages.
The State’s claim that the rejection of the KKK’s application was based on the fear that such a sign would “cause significant public concern” only supplements the case that this is clear viewpoint discrimination. Though it may be a reasonably founded fear, when this sort of language is employed by the government as a means of banning certain speakers, those are the speakers that typically need the full protection of the First Amendment the most. There is no greater slippery slope within a democracy than when a government begins to ban speech simply because it makes people uncomfortable. The director of the ACLU in Georgia, Maya Dillard Smith, said, “Today it’s the KKK. Tomorrow it’s journalists, lobbyists, religious evangelicals and even Black Lives Matter.” While a scenario in which this sign’s presence would lead to danger within the community could exist, this fear, rooted more in paranoia than reality, is not tangible enough to deprive a group of people of their constitutional rights.
Speech that challenges the status quo, for better or for worse, inherently makes people uncomfortable. Such was the case in 1963 when Reverend Shuttlesworth wanted to vocalize his desire for racial equality. The speech that made so many people in Birmingham “concerned” was the speech that, in hindsight, most desperately needed to be articulated at the time. And while there will certainly never be any need within a society for the hateful speech expressed by the KKK, the principle of free speech must apply equally to all. To me, a sign with the name of the KKK alongside a highway is a sign of a healthy democracy.