A more civic-minded KKK?

Photographer: Spencer Platt/Getty Images

Georgia Doesn't Have to Endorse the KKK

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Georgia Supreme Court handed the Ku Klux Klan a victory in its quest to participate in the state’s Adopt-A-Highway program. On a technicality, the court upheld a trial court finding that Georgia’s decision to exclude a Klan chapter violated the group’s free-speech rights.

The high court seemed to want to avoid deciding the core free-speech issue, which is too bad because it’s an important one. The best reading of U.S. Supreme Court precedent would have allowed the state to block the Klan from participating. The government should be able to choose its partners when it’s essentially selling a state endorsement to civic groups for a fee.

Georgia’s highway project works like similar programs in lots of other states. The Department of Transportation invites volunteers to remove litter along stretches of state and federal highway. The program is open to organizations, businesses, families or other civic groups. In exchange for agreeing to adopt a stretch of roadway, the group gets a sign -- approved by the department -- stating that the section is being kept clean by the named group.

In 2012, the International Keystone Knights of the Ku Klux Klan, a local KKK-affiliated group, applied to adopt a one-mile stretch of Route 515 in Union County, Georgia.

You can be forgiven if you think it sounds strange that a secretive racist group with terrorist origins would seek to act like any other civic-minded association. The history of the Klan in the U.S. is a long and complex one, and it has featured several different phases in which the organization has had different forms and guises.

The Klan’s first manifestation, in the post-Civil War Reconstruction South, was as a terrorist organization that played a key role in what today we would call an insurgency against the occupying power, namely the U.S. government and its federal troops.

But in later phases, like that of the 1920s, the Klan acted more like a civic association in many places. Nationally, the KKK had 4 million members, a surprising number of them outside the South.

When in 1923 Hugo Black, then a little-known lawyer in Birmingham, Alabama, wanted to launch a statewide run for Senate, he joined the Klan, which had local chapters all over the state and held regular parades and conferences called Konklaves. The statewide network gave Black an entrée into Alabama’s political system, and in 1926 he won, launching a career that would eventually put him on the Supreme Court.

Today’s Klan is yet a different entity, far reduced in power and influence. But it’s consistent with the organization’s history to want to participate in civic life in some ways.

In the state of Georgia, however, the Klan’s history hasn't been forgotten. State officials turned down the International Keystone Knights’ proposal. As one of its reasons, the transportation department said that posting a sign “naming an organization which has a long-rooted history of civil disturbance would cause a significant public concern.” It then explained that “impacts include safety of the traveling public, potential social unrest, driver distraction or interference with the flow of traffic.”

Then, presumably nervous that this rationale would not fly in court, the state formally suspended the whole Adopt-A-Highway program, although it has said it plans to reinstate it at some future point.

The Klan sued, arguing that the denial violated their free-speech rights. A Georgia trial court agreed with them. It held that the Klan’s application had been subjected to impermissible viewpoint discrimination because it was “singled out for scrutiny not given to other applicants to the program.” The trial court reached its decision under the Georgia Constitution, but it noted that Georgia courts typically look to the U.S. Constitution and its interpretation by the Supreme Court in determining what the Georgia constitution requires.

The state appealed, but in doing so, it made a technical error in failing to file a form called an “application to appeal.” The error was understandable given the procedural history of the case, and the Georgia Supreme Court could easily have overlooked it. Instead, the Georgia Supreme Court interpreted the rule strictly and refused to hear the appeal.

It’s hard to avoid the conclusion that the state Supreme Court wanted no part of the case. Presumably, it hopes that the Klan chapter will eventually withdraw its application, that the state will then reinstate the Adopt-A-Highway program, and that it will be as though nothing ever happened.

The Georgia Supreme Court must have suspected that it would have to rule in favor of the Klan like the trial court did. But that isn’t necessarily so.

The controlling Supreme Court precedent involved a Texas license plate program that allowed for logos and sponsorship. In 2015, the court held 5-4 that the program was an instance of government speech, so that Texas was allowed to prohibit the Confederate battle flag from being displayed on its license plates. The deciding vote came from Justice Clarence Thomas, himself from Georgia, who joined the liberals and voted differently from how he usually does in free-speech cases, very possibly because of his understanding of the symbolism of the flag.

In my view, the Adopt-A-Highway program is like the Texas license plate program: an exercise of government speech. Viewers understand that the state is endorsing the civic association by allowing it to serve as a sponsor. We’re all familiar with this kind of corporate placement, even when the state engages in it. That’s why the state didn’t want the Klan to participate.

The Georgia Supreme Court missed the opportunity to clarify the doctrine on this point. It also missed the chance to repudiate some of the state’s unfortunate history, and that’s a shame.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net