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| There's not much you can't say . . . |
By Charlie Buttrey
Writing for the majority in the 2012 case United States v. Alvarez, Justice Anthony Kennedy wrote that “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”
William Schenk took Justice Kennedy’s remarks to heart when he distributed flyers advertising the Ku Klux Klan to the homes of two women, one a Mexican-American, the other an African-American. The one-page flyer depicted a hooded and robed Klansman mounted on a horse, holding a burning cross. Behind the rider were images of the Confederate flag and the colonial thirteen-star American flag. Across the top of the flyer were the words: “Join the Klan and Save Our Land.”
For doing so, Schenk found himself charged with two criminal counts of disorderly conduct. The complaints alleged that he “recklessly created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO WIT, by anonymously placing a flyer endorsing the Ku Klux Klan.” Schenk moved to dismiss on the grounds that his conduct was protected under the First Amendment. The trial court denied the motion, ruling that the conduct was not protected speech since Schenk allegedly used the flyer as a tool to convey a strong message of intimidation and the potential for harm. Schenk entered a conditional guilty plea, reserving the right to appeal the trial court’s decision, and was sentenced to concurrent terms of 119 to 120 days, with credit for time served.
On appeal, the Vermont Supreme Court reverses. Rather than squarely address the question of whether Schenk’s speech was or was not protected by the First Amendment, the court instead focuses on whether his conduct violated the statute under which he was charged. Holding that pure speech, standing alone, is insufficient to convict for disorderly conduct as the statute currently reads, the court considers whether Schenk’s conduct—specifically, delivering the flyers to the mailboxes or doors of the two women—constituted the sort of “disorderly conduct” contemplated by the statute.
William Schenk took Justice Kennedy’s remarks to heart when he distributed flyers advertising the Ku Klux Klan to the homes of two women, one a Mexican-American, the other an African-American. The one-page flyer depicted a hooded and robed Klansman mounted on a horse, holding a burning cross. Behind the rider were images of the Confederate flag and the colonial thirteen-star American flag. Across the top of the flyer were the words: “Join the Klan and Save Our Land.”
For doing so, Schenk found himself charged with two criminal counts of disorderly conduct. The complaints alleged that he “recklessly created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO WIT, by anonymously placing a flyer endorsing the Ku Klux Klan.” Schenk moved to dismiss on the grounds that his conduct was protected under the First Amendment. The trial court denied the motion, ruling that the conduct was not protected speech since Schenk allegedly used the flyer as a tool to convey a strong message of intimidation and the potential for harm. Schenk entered a conditional guilty plea, reserving the right to appeal the trial court’s decision, and was sentenced to concurrent terms of 119 to 120 days, with credit for time served.
On appeal, the Vermont Supreme Court reverses. Rather than squarely address the question of whether Schenk’s speech was or was not protected by the First Amendment, the court instead focuses on whether his conduct violated the statute under which he was charged. Holding that pure speech, standing alone, is insufficient to convict for disorderly conduct as the statute currently reads, the court considers whether Schenk’s conduct—specifically, delivering the flyers to the mailboxes or doors of the two women—constituted the sort of “disorderly conduct” contemplated by the statute.
SCOV holds that it does not. While recognizing that “any communication from the Ku Klux Klan complete with symbols of the Klan, particularly the burning cross, would raise concern and fear in a reasonable person who is a member of an ethnic or racial minority,” the court observes that the flyer contains no explicit statement of threat, nor did Schenk engage in any threatening behavior. In the absence of any evidence that he engaged in any such conduct, SCOV rules, the State cannot establish a prima facie case against Schenk, and the charges must be dismissed.
Justice Robinson, who is joined by Chief Justice Reiber, is not so convinced and, in a dissent that is lengthier than the majority’s 19-page opinion, maintains that the “threatening behavior” contemplated by the statute is expansive enough to encompass Schenk’s conduct. Specifically, Robinson notes, the flyers were targeted at two minority residents in a predominantly white neighborhood, they invoke powerful symbols of violence against racial and ethnic minorities, and were placed inside or next to the screen doors of the two individuals’ homes. That conduct, she argues, is sufficient to establish a case sufficient to allow the matter to proceed to trial.
Justice Robinson, who is joined by Chief Justice Reiber, is not so convinced and, in a dissent that is lengthier than the majority’s 19-page opinion, maintains that the “threatening behavior” contemplated by the statute is expansive enough to encompass Schenk’s conduct. Specifically, Robinson notes, the flyers were targeted at two minority residents in a predominantly white neighborhood, they invoke powerful symbols of violence against racial and ethnic minorities, and were placed inside or next to the screen doors of the two individuals’ homes. That conduct, she argues, is sufficient to establish a case sufficient to allow the matter to proceed to trial.
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