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Thursday, Mar. 08, 2001

This week, the Supreme Court made news by declining to hear a case arising from the Missouri Highway and Transportation Commission's denial of the Ku Klux Klan's application to participate in Missouri's Adopt-A-Highway program.

Under the Adopt-A-Highway program, organizations can clean up litter from, plant flowers near, or mow the grass alongside stretches of highway. The state rewards their volunteerism by erecting a sign bearing their name.

The Klan successfully challenged the denial of its application to join the program in federal court, winning at both the trial and appellate levels. Missouri, with the support of the U.S. Department of Justice, then sought Supreme Court review.

The Court may have declined to review the case because its outcome seemed to be determined by recent Court precedents. If so, the Court was wrong. The Klan case raised new and different legal issues, and thus deserved to be heard.

In recent years, the Court has frequently addressed groups' First Amendment right to discriminate in their membership, in order to better convey their message.

Last year, for example, the Court issued a 5-4 decision holding that the Boy Scouts of America had a First Amendment right to exclude homosexuals. And in 1995, the Court issued a unanimous decision holding that the private organizers of a Saint Patrick's Day parade had a First Amendment right not to include an Irish-American gay, lesbian, and bisexual organization in their parade.

Together, these cases suggest two principles: that groups' messages must be allowed to come through, loud, clear, and unimpeded by dissenting members' views; and that groups have the right to choose their own members, even if their choices are based on gender, religion, race, or sexual orientation. These principles, while controversial, aid not only the Klan and anti-gay groups, but also, for example, women's organizations and religious organizations.

These two principles might appear to easily resolve the Klan case. And certainly, the Eight Circuit's decision mirrored the Supreme Court's Boy Scouts decision in certain ways. The Eight Circuit reasoned that the Klan could not be required "to alter its message of racial superiority and segregation by accepting individuals of other races, religions, colors and national origins in order to adopt a highway." The Supreme Court had found similarly that the Boy Scouts could not be required to retain a gay scout leader because that would "interfere with the Boy Scouts' choice not to propound a point of view contrary to its beliefs."

But the Klan case goes beyond the Boy Scouts and St. Patrick's Day parade Supreme Court precedents — for in the Klan case, the speech at issue is not really the Klan's, but the State of Missouri's.

Highway Signs Are Government Speech

Even the Eighth Circuit effectively conceded that the Klan case is not really about volunteerism — pointing out that "the Klan's adoption of a highway does not in any way prohibit others from cleaning along that part of the highway," and thus suggesting, conversely, that Klan members may clean parts of the highway that other groups have adopted. Anyone, the court found, can volunteer.

If the case is not about volunteerism, it must be about the other component of the Adopt-A-Highway program: the signs erected on the portion of highway groups have adopted, which honor the names of the volunteers. These signs make a statement by the government, honoring and expressing respect for the volunteering organizations — and, in this instance, honoring and expressing respect for the Klan.

The Eighth Circuit avoided this issue by claiming that Missouri "does not view the erection of an Adopt-A-Highway sign as an endorsement or promotion of the adopter." But that matters little. What matters is that sign will be widely perceived as an endorsement or promotion of the adopter — and specifically, here, of the Klan.

When public property carries a private name — just as when a private lawn carries a candidate's sign — the message is unavoidably one of endorsement. And endorsement of the Klan, given the organization's history, is tantamount to a message of racism and hostility.

Consider this: Although others may have the legal right to pick up litter or plant flowers along "the Klan's" part of the highway, given the sign posted there, who would dare to do so? And what traveler — especially, what African-American or Jewish traveler — would choose to stop in the town next to which the Klan has adopted a highway? What easier way to run a de facto all-white, all-Christian hotel than to set up shop in that town?

The sign, in short, implies a message of government-sanctioned hatred and fear. The issue is not, as in the famous First Amendment case, whether the Nazis can march in Skokie. It is, in effect, whether Skokie will honor them by erecting a highway sign with a swastika on it.

No wonder Missouri tried to fight this case all the way up to the Supreme Court; the State does not want the racist image that would inevitably be evoked by the Klan Adopt-A-Highway sign. Missouri is right to be concerned: The message of the sign will be seen as the State's — not the Klan's.

It is the State, not the Klan, that will become notorious for the sign — the subject of uneasy jokes, as well as real fear. If Missouri allows the Klan to take over part of its highway, people will wonder, what must the state be like?

No state should be required to send a message that implies racism, one that denigrates some of its own citizens. The Klan and its members have the right to clean up litter, plant flowers, and mow the grass with the rest of us — and the right, along with other organizations, to have their own parades, and to choose the members they want and exclude the members they don't. But we don't have to honor them for exercising any of those rights, and neither should the State of Missouri. The Supreme Court should have taken the case, and said as much.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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