By Alyson Palmer, From Daily Report
As last month’s deadly shooting at a predominantly black Charleston church places pressure on state and local governments to release their embrace of Confederate symbols, the state of Georgia is defending its attempt to distance itself from an affiliate of the Ku Klux Klan.
The state is appealing a Fulton County judge’s ruling that the state’s denial of the KKK affiliate’s request to participate in the Adopt-a-Highway Program violated the group’s First Amendment rights. The KKK says the state is illegally singling it out based on its views, while the state says it doesn’t have to respect the group’s free speech rights in considering its application, because any speech involved in the highway program is that of the government, not the group.
The case is scheduled to be heard by the state Court of Appeals on Thursday, although one of the KKK group’s lawyers, Alan Begner, said his team would be requesting a postponement to better prepare.
Throwing the KKK’s win into doubt is last month’s U.S. Supreme Court ruling that Texas’ specialty license plates are government speech and thus the state’s decision to refuse to issue a specialty plate featuring the Confederate battle flag didn’t violate the First Amendment. The KKK group’s lawyers previously had said the specialty license plates were analogous to Adopt-a-Highway signs but are pointing to differences in the two scenarios in the wake of the Supreme Court’s ruling.
In May 2012, the International Keystone Knights of the Ku Klux Klan Inc. submitted to the Georgia Department of Transportation an application to participate in the state’s Adopt-a-Highway program, requesting a segment of State Route 515 in Union County. Under that program, groups or individuals can volunteer to keep clean a stretch of road, and the state will erect a sign with the program’s logo and the volunteer’s name.
According to a brief filed by the KKK affiliate, a GDOT coordinator initially told one of the group’s members that the sign would be ready in six to eight weeks. But another GDOT official told the group a couple of weeks later that the application was still being reviewed. According to the brief, internal GDOT communications showed the review process for the group’s application included obtaining “the governor’s thoughts” and meeting to “fine tune [the state’s] message and strategy.”
The GDOT’s commissioner sent a letter to the group denying the application in June 2012. The state provided two reasons for the denial: 1) safety concerns about the 65 mph speed limit of the road segment requested by the group, and 2) the public concern regarding “the impact of erecting a sign naming an organization which has a long-rooted history of civil disturbance.”
Within a few months, the KKK group sued the state, asking the court to order the state to reverse its decision. Considering both sides’ motions for summary judgment last year, Fulton Superior Court Judge Shawn LaGrua said the denial of the application based on the group’s “history of civil disturbance” violated the group’s free speech rights and enjoined the state from denying the application on that basis. She said the state had impermissibly singled out the group’s application for greater scrutiny based on the group’s views. (LaGrua said her ruling obviated the need to consider the KKK affiliate’s argument that the GDOT’s stated concern about the speed limit on Route 515 was merely a pretext for discrimination.)
The state appealed to the Georgia Court of Appeals, pressing the two major arguments rejected by LaGrua.
The state contends that the sovereign immunity provided to it in the state constitution bars the KKK’s claims against it, given that neither the state constitution nor the state Legislature has explicitly waived immunity for those claims. It cites last year’s ruling by the state Supreme Court in Georgia Department of Natural Resources v. Center for a Sustainable Coast, which expanded the reach of sovereign immunity. The lawyers in the office of Attorney General Sam Olens argue LaGrua was wrong to conclude that the constitutional nature of the KKK’s claims meant that decision didn’t apply.
The state also argues that, even if sovereign immunity does not bar the KKK’s claims, it does not have to maintain neutrality about the views of highway program applicants because any speech involved in the program belongs to the government. “Just as the state is prohibited from silencing the free speech of the KKK,” said the state’s lawyers in one of their briefs, “the KKK is likewise prohibited from commandeering the mouth of the state to communicate its own message.”
Begner, who represents the KKK group along with his colleagues at Begner & Begner and Nora Benavidez of the ACLU of Georgia, called the state’s attempts to expand sovereign immunity to constitutional challenges “a frightening thought, indeed,” saying in an interview, “I can’t imagine how constitutional challenges could be up to the Legislature’s kindness.”
And he has argued in a brief that the highway program involves the speech of his clients, not just the government. It is an organization’s participation in the highway program that communicates that the organization is civic and environmentally conscious, he argues in a brief. Without an organization participating in the highway program, he says, there can be no sign.
Moreover, Begner argues, no reasonable person passing by an Adopt-a-Highway sign would conclude that the state is endorsing the organization whose name is on the sign.
The KKK’s lawyers cite a handful of cases in which federal courts have sided with the KKK in their attempts to participate in highway cleanup programs. They say a case in which the U.S. Court of Appeals for the Fifth Circuit sided with the state in a similar dispute with the KKK over a highway cleanup program was different in that in that case the Texas KKK sought to adopt a portion of road outside the only entrance to a public housing project as a means to thwart a federal desegregation order.
In an initial briefing on the appeal, the KKK’s lawyers said the speech “most analogous” to Adopt-a-Highway signs are specialty license plates, such as “Choose Life” plates drivers select to convey an anti-abortion message. The lawyers noted that most federal circuit courts that have considered the First Amendment implications of such license plates have concluded that the plates are not purely government speech, but a mix of government and private speech.
On June 18, the U.S. Supreme Court went another route, saying Texas’ license plate program was not subject to First Amendment scrutiny. The Georgia AG’s office on Monday submitted a supplemental brief in the Adopt-a-Highway case, saying the Supreme Court decision mandated a ruling in Georgia’s favor.
In an interview, Begner said the Texas license plate case was different. “The [Adopt-a-Highway] sign, which is just the name of the participant, without symbolism and without messages, is a small part of the speech component,” he said. “And our sign, if you look at it, is nothing like the license plate, either.”
Begner is expected to argue the case against Senior Assistant Attorney General Julie Jacobs and Assistant AG Brittany Bolton, whose office declined to comment beyond its briefs. Begner said he hasn’t considered how he might approach the argument differently in light of renewed controversy over Confederate symbols. “I don’t think it matters,” he said.
The case is State v. International Keystone Knights of the Ku Klux Klan, No. A15A1407.
IMAGE: Alan I. Begner – Alison Church
For more on this story go to: http://www.dailyreportonline.com/id=1202731527807/Georgia-Defends-Right-to-Deny-KKK-Group-a-Highway-Cleanup-Sign#ixzz3fJQJxbYv