The Ku Klux Klan may continue its efforts to “adopt” a highway in Georgia, thanks to a technicality – and a lawsuit filed on their behalf by the American Civil Liberties Union (ACLU).
In a unanimous ruling announced Tuesday, the Supreme Court of Georgia, based in Atlanta, dismissed the state’s appeal against a lower court ruling, which asserted that the Georgia Department of Transportation was infringing the Klan’s rights when it denied their application to be part of the “Adopt a Highway” scheme. The Department of Transportation filed the appeal incorrectly, however, meaning the Klan can now pursue its bid to sue the state.
While the specifics revolve around the KKK's rights to pick up trash, the issues being debated run far deeper, in what is only the most recent case to make odd allies of the ACLU and causes that challenge the boundaries of free speech.
“Our position on this case, and First Amendment rights in general,” explains Kathleen Burch, Interim In-House Counsel for ACLU Georgia, in a telephone interview with The Christian Science Monitor, “is we often see infringement of rights being against those on the fringes of society, and if we don’t protect them, we can’t protect anyone.”
In June 2012, Georgia's Department of Transportation denied the International Keystone Knights of the Ku Klux Klan's application to be part of the highway scheme, citing its potentially distracting effect on drivers, and the department's unwillingness to promote an organization “with a history of inciting civil disturbance and social unrest.”
In their statement announcing the lawsuit on the KKK’s behalf, the ACLU admitted that many find the group’s views “abhorrent.” But as Debbie Seagraves of ACLU Georgia told the Guardian in 2012, “even if it is difficult for me to say we are considering representing the KKK, if we let that First Amendment protection be eroded, all of us will suffer for it.”
Taking that argument one step further, Joshua Wheeler, director of the Thomas Jefferson Center for the Protection of Free Expression, tells the Monitor that at the core of the First Amendment is the idea that the government should be unable to prohibit ideas with which it disagrees.
“Even if they’re ideas that are distasteful or even hateful, that’s a dangerous power to give the state,” says Dr. Wheeler in a phone interview. “Think what it would mean for a democracy if a government could do that: It would be the first step toward totalitarianism.”
Indeed, as Ms. Burch talks through the procedure her organization uses to determine whether they represent a given client, or plaintiff, the identity of that group, and what they stand for, is rarely a factor. What matters is whether their constitutional rights are being violated, and whether the facts of the case establish that to be so.
This does not preclude a “robust discussion,” as the ACLU legal committee considers each case and whether to provide representation. But the only way in which the popularity of a group comes into play is normally the opposite of what some might assume: That is to say, if the ACLU refuses to take on the case, who else will be willing to fight for the right at stake?
“In fact, you often find that when we make good law, it’s done with groups many find unattractive,” says Burch. “Elected officials often listen to the voice of the majority, so the voice of the minority gets closed out.”
The ACLU is no stranger to such controversies. In one of its most notorious cases, the organization in 1978 sided with a neo-Nazi group trying to march, in Nazi-like uniforms, in Skokie, Ill., a town near Chicago that was home to many Holocaust survivors. The intense emotions inspired by the decision prompted some ACLU members to resign in protest.
Yet the case came to be seen as a watershed, defining the ACLU’s “commitment to principle.” They won, although the march ultimately never took place: the neo-Nazi group instead held a rally in downtown Chicago.
Although the ACLU is best known for defending liberal causes, the group's uncompromising stance on freedom of expression, regardless of the views expressed, has led it to defend numerous groups that don't share its perceived political leanings.
In addition to the KKK and neo-Nazis, they have defended the Washington Redskins football team, conservative talk show host Rush Limbaugh, and Chick-fil-A, the fast food chain whose president lamented same-sex marriage. The group's defense of the First Amendment has also led to parodies such as the Onion's 2003 spoof article, "ACLU defends Nazis' right to burn down ACLU headquarters."
The principles at stake are one facet of this debate, but as Wheeler of the Thomas Jefferson Center points out, there is a very practical matter to be considered: the question of whether censorship even works. If you “force the hateful ideas underground,” then the only people who are going to hear them are those who agree with them.
“The idea of the First Amendment is not to insulate ideas, but to expose them to criticism,” says Wheeler. “And when you expose these ideas to the sunlight of morality, of logic, they simply cannot stand. It is a far more effective tool to argue and debate than to try to censor.”