Monday the U.S. Supreme Court dismissed Missouri's challenge to a lower court's ruling that the state cannot keep the KKK from participating in an Adopt-a-Highway program and posting signs along their "adopted" stretch of highway. The white supremacy group, represented by lawyers from the American Civil Liberties Union, filed suit against Missouri in 1994, when the state's department of transportation denied their request to join the clean-up program, citing the KKK's racist membership policy and history of "unlawful violence." Since then, the case has bounced in and out of state and district appeals courts, until it finally landed in Washington, D.C.
Missouri's lawyers argued the state did not want the KKK to have anything that looked like state-sanctioned publicity or approval, and that allowing the KKK to participate in the cleanup programs would violate the 1964 Civil Rights Act, which bans racial discrimination in programs that receive federal funds. Attorneys for the KKK insisted the case was an open-and-shut challenge to the First Amendment.
For their part, the Supreme Court Justices were not interested in offering comment — they simply dismissed the challenge without writing an opinion or a dissent. That kind of dismissal means the Justices did not reject the case because it lacked merit, but rather because they wanted to defer to the lower court's ruling.
It's conceivable, of course, that the KKK has some deep-seated desire to pick up litter along Missouri's highways and byways, or to plant a few posies on the median just in time for spring. But by the time the case got to the first round of appeals, it was all about legalities. According to Thomas Robb, national director of the KKK based in Harrison, Ark., the legal challenge was "a purely constitutional issue" for the KKK.
Some observers cast a cynical eye at the idea of KKK-sponsored civic activism. This Adopt-a-Highway challenge was a dare of sorts, says UCLA law professor Eugene Volokh, a constitutional law and First Amendment expert. "Nobody wants to publicize the KKK's agenda, and so the group has to find a way to make news. And with this case, the KKK gets to style itself as a defender of First Amendment rights against a government that, in the mind of the KKK, has been taken over by all these anti-white people," Volokh says.
And so the KKK's members (and lawyers) get to revive the age-old battle between the First Amendment and its old foe, good taste. And, as is so often the case, the First Amendment victory is bittersweet.