Friday, February 13, 2015

Traditionalist American Knights of the Ku Klux Klan vs. City of Desloge, MO

Opinion issued
December 24, 2014

Link to Court of Appeals for the Eighth Circuit Opinion

The Ku Klux Klan and KKK Imperial Wizard Frank Ancona (collectively referred to as “The Klan”) sought a preliminary injunction against the enforcement of a Desloge, MO city ordinance.[i]  The district court granted the injunction after determining that the ordinance unconstitutionally prohibited free speech in violation of the First Amendment of the United States Constitution.[ii]  In so ordering, the district court determined that the ordinance was not narrowly tailored to achieve the city’s interests in protecting pedestrians and traffic safety.[iii]  The city appealed the district court’s determination, claiming that their ordinance did not offend the First Amendment, and the 8th Circuit Court of Appeals ultimately reversed and remanded the determination.[iv] 

I. Facts and Holding

The city of Desloge, MO, a small city located 60 miles southwest of St. Louis, MO, has instituted and revised several ordinances in regards to distribution and solicitation on public streets and sidewalks, several of which are at the heart of the dispute that brought about this lawsuit.[v] 

The plaintiffs in this case, The Klan, challenged a Desloge, MO city ordinance that prohibited “stand[ing] in or enter[ing] upon a roadway for the purpose of . . . distribut[ing] anything to the occupant of any vehicle.”[vi]  This ordinance was passed in April 2013.[vii]  Several members of The Klan wished to distribute literature to persons within the city of Desloge, MO, including people passing by in vehicles.[viii]  On April 26, 2013 members of The Klan attempted to distribute leaflets stating their position on gun rights.[ix]  Stationed along a sidewalk at a four-way stop they held their leaflets up and waited for people to seek out the information.[x]  If an occupant of a vehicle signaled for a leaflet, a member of The Klan would enter the street to provide the information to the person who had signaled.[xi] 

When a police officer witnessed one of the members enter the roadway to distribute a leaflet to an occupant of a vehicle, the officer approached The Klan to notify them of the city ordinance, and Imperial Wizard Ancona was given a copy of the ordinance.[xii]  Subsequently, The Klan, represented by the American Civil Liberties Union (ACLU), filed an action to enjoin enforcement of the April 2013 ordinance on the grounds that their First Amendment right to freedom of speech was being violated.[xiii] 

While the litigation challenging the April 2013 ordinance was pending, the city amended the ordinance in August 2013 to add a preamble, explaining that the purpose of the ordinance was to “address ‘public safety concerns,’ specifically the risk that people soliciting or distributing materials within a roadway would distract drivers and ‘result in the person in the Roadway being struck by the vehicle during its operation, or the vehicle striking another vehicle or property in an effort to avoid the person in the Roadway.”[xiv]  The Klan sought a preliminary injunction to enjoin the enforcement of the August 2013 ordinance on August 19, 2013, just three days before the ordinance was to go into effect.[xv] 

The district court held a hearing on the plaintiffs’ motion for a preliminary injunction, where the parties submitted exhibits, including a resolution from the city affirming that the August 2013 ordinance replaced and repealed the April 2013 ordinance, and several witnesses testified.[xvi]  Ultimately, the district court determined that the plaintiffs had standing to challenge the ordinance in regards to distribution, and determined that the ordinance was not narrowly tailored and that The Klan was likely to prevail on the merits of its First Amendment challenge.[xvii]  After concluding that the other requirements for a preliminary injunction were satisfied, the district court granted The Klan’s motion and the city appealed to the 8th Circuit.[xviii] 

When reviewing a granted motion for preliminary injunction, the court of appeals reviews the district court’s findings for abuse of discretion.[xix]  The court, after stating that their review of the district court’s holding will be for abuse of discretion looked to see whether the city of Desloge, in passing the ordinance, was acting in response to a real danger, rather than mere speculation of danger.[xx]  The court also noted that The Klan does not dispute that pedestrian and traffic safety are significant interests, nor is it in dispute that the city of Desloge has left open alternative channels for communication of The Klan’s message.[xxi]  The Klan challenged the ordinance on narrow tailoring grounds, specifically arguing the ordinance should be more targeted, focusing on dangerous intersections and times, and that the city’s failure to specify intersections and times so resulted in an ordinance that was both under and over inclusive.[xxii] 

Ultimately, the 8th Circuit Court of Appeals reversed and remanded the district court’s determination, finding that the August 2013 ordinance passed by the city of Desloge was neither over nor under inclusive, and that it was in fact narrowly tailored to serving the city’s significant interests in pedestrian and traffic safety.[xxiii] Further, the court stated that the ordinance leaves open ample alternative channels of communication, and is not an unconstitutional abridgment of The Klan’s First Amendment guarantee of freedom of speech.[xxiv] 

II. Legal Background

The First Amendment of the United States Constitution states, “[c]ongress shall make no law . . . abridging the freedom of speech.”[xxv] Although this is not an absolute right, courts generally give preferential treatment to cases that abridge the First Amendment and the freedom of speech.  There are however regulations placed on certain types of speech in certain places, times and manners that have been upheld as constitutionally valid regulations by the courts.

The regulation of speech at issue in the present case had to surpass an intermediate standard of scrutiny due to the fact that the speech regulated by the ordinance was content-neutral and took place in a traditional public forum.[xxvi]  Such regulations on speech are permissible if “they are narrowly tailored to serve a significant governmental interest and . . . they leave open ample alternative channels for communication of the information.”[xxvii] 

The United States Supreme Court has interpreted narrow tailoring to mean that a regulation must not “burden substantially more speech than necessary to further the government’s legitimate interests,”[xxviii] and further, the regulation need not be the “least restrictive or least intrusive means of serving the government’s interests,” in order to be narrowly tailored.[xxix]  In Assoc. of Comm. Orgs. For Reform Now v. St. Louis County,[xxx] the 8th Circuit said that the city was required to make a “threshold showing that the factual situation demonstrate[d] a real need for [the ordinance] to act to protect its interest,” and once the city made such a showing, its “choice among the means to accomplish its end is entitled to deference.”[xxxi]

In St. Louis County,[xxxii] the 8th Circuit Court of Appeals upheld a county regulation over a First Amendment challenge by a nonprofit organization soliciting in roadways.[xxxiii]  The nonprofit organization sought donations using a “toll road” method, which required people collecting donations to step into the streets to obtain contributions from vehicle occupants and provide them with informational leaflets.[xxxiv]  The court held that the “relationship between the regulation and the government’s interest in safety and traffic efficiency [was] sound,” and the county’s method of regulating the interest was entitled to deference when challenged.[xxxv]  The court, quoting Ward v. Rock Against Racism,[xxxvi] stated that since the county “could reasonably have determined that its interests overall would be served less effectively without [the regulation] than with it,” the nonprofit organization’s constitutional claim failed.[xxxvii]  The court ultimately held that the county’s regulation was a valid restraint on speech, and upheld the district court’s award of summary judgment in favor of the county.[xxxviii] 

III. Comment

The determination by the 8th Circuit Court of Appeals to reverse the district court’s grant of a preliminary injunction was the correct decision in this case.  While I believe that freedom of speech is a cornerstone of our society and a fundamental right that should not be infringed upon in most circumstances, there are times when substantial governmental interests warrant limiting the freedom.  In this case, the safety of the pedestrians in the city of Desloge, MO was a very significant interest, and the city’s decision to prohibit distribution of leaflets within a roadway was narrowly tailored to achieving that interest.  Further, there are still ample alternative methods for groups to distribute information and speak freely within the city of Desloge.  They can pass out information on the sidewalks, place leaflets on parked cars, and talk to people as they pass on the sidewalk, these other means for communicating their message are sufficient and the limited burden on their speech of not allowing people to enter the street to distribute leaflets to vehicle occupants is a small sacrifice for the safety of the public. 

Additionally, ample precedent supports the court’s determination in this case.  The Supreme Court has long held time, place, and manner restrictions on the freedom of speech constitutional when such restrictions pass the appropriate standards of scrutiny.  The standards, which are differentiated based on the content of the speech and the place in which the regulation limits the messages are high and seek to discourage regulations on speech unless they are truly necessary.

Limiting someone’s speech should be the exception rather than the rule because of the fundamental nature of freedom of speech. The safety of the public as a whole is a significant interest that the government holds, and a regulation that allows a group to convey their messages in numerous places, provided they do not enter a roadway and put pedestrian safety in jeopardy seems like a fair and minimally intrusive constraint on an organization’s freedom to express its ideas and opinions. 

- Cameron A. Beaver

[i] WL 7345481, at *1. (8th Cir. 2014).
[ii] Id.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, MO, WL 7345481 (8th Cir. 2014) (quoting City of Desloge, Mo., Code 2013.04 (2013)).
[vii] Traditionalist American Knights of the Ku Klux Klan, *2.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, MO, WL 7345481 (8th Cir. 2014).
[xiv] Id. at *2;  (citing City of Desloge, Mo., Code § 220.205 (2013)).
[xv] Id. at *3.
[xvi] Id.
[xvii] Id.
[xviii] Id.
[xix] Id. at *4 (citing S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)).
[xx] Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, MO, WL 7345481, *4-5 (8th Cir. 2014).
[xxi] Id. at *5.
[xxii] Id. at *6.
[xxiii] Id. at *10.
[xxiv] Id.
[xxv] U.S. Const. Amendment I
[xxvi] Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, MO, WL 7345481, *5 (8th Cir. 2014) (citing Frisby v. Schultz, 487 U.S. 474, 480 (1988); Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678, 689 (8th Cir. 2012)).
[xxvii] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
[xxviii] McCullen v. Coakley, 134 S.Ct. 2518, 2535 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781 (1989)).
[xxix] Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, MO, WL 7345481, *5 (8th Cir. 2014) (quoting McCullen v. Coakley, 134 S.Ct. 2518, 2535 (2014). 
[xxx] 930 F.2d 591, 595 (8th Cir. 1991).
[xxxi] Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, MO, WL 7345481, *5 (8th Cir. 2014) (quoting Assoc. of Comm. Orgs. For Reform Now v. St. Louis County, 930 F.2d 591 (8th Cir. 1991)). 
[xxxii] 930 F.2d 591 (8th Cir. 1991).
[xxxiv] Id. at 593.
[xxxv] Id. at 596.
[xxxvi] 491 U.S. 781 (1989).
[xxxvii] 930 F.2d 591, 597 (8th Cir. 1991).
[xxxviii] Id.