The Ku Klux Klan can distribute leaflets in the small town of Desloge, Mo., but its members cannot step out into the street to do so.
A three-judge panel of the 8th Circuit Court of Appeals ruled that the city can restrict where information is handed out. The decision overrules a federal court judge’s ruling last year that prevented the city from enforcing an ordinance banning the KKK and others from standing or walking into the street to hand out information to motorists.
The panel ruled 2-1 that the city’s public safety concerns are valid and that the city “left open other options for the Klan to make its materials available in the city.” That includes KKK members standing curbside and handing leaflets to motorists who pull over to the side of the road.
“We felt all along that we had done our due diligence to craft an ordinance that had public safety as its centerpiece for pedestrians and motorists and didn’t infringe on anyone’s First Amendment rights,” Desloge City Administrator Greg Camp said. His town of about 5,000 people sits along U.S. Highway 67, about an hour southwest of St. Louis.
But in a dissenting opinion, Circuit Judge James B. Loken said U.S. Magistrate Judge Nannette A. Baker offered a “careful and thorough opinion” when granting an injunction against Desloge and was correct in citing case law that states the ban on distribution “silenced an unpopular speaker in a traditional public forum.” The opinion was issued last week.
Frank Ancona, an imperial wizard with the Traditionalist American Knights of the Ku Klux Klan, said the city ordinance was engineered to discriminate against his group, making it harder to get the KKK messages out. That said, the ruling “is not going to curtail any of our leaflet activities.”
The American Civil Liberties Union of Missouri represented the KKK in its suit against Desloge. ACLU legal director Anthony Rothert on Tuesday asked for an extension to file a petition asking for a rehearing before the full court of appeals. Rothert said in his motion that the three-judge panel opinion “misapprehends points of law” and conflicts with other decisions including those issued by the court of appeals.
The 1999 ordinance was drafted to restrict where Little League ball clubs, high school band boosters and church groups could stand to collect money, Camp said. The Klan challenged the ordinance in 2012, after city officials said “solicitation activities” on public streets were prohibited. A judge filed an injunction concluding that the ordinance violated the First Amendment.
On April 26, 2013, Ancona and other Klan members returned to Desloge to distribute leaflets explaining their views on gun rights. Their visit came 18 days after the city had enacted a new traffic ordinance, which prohibited standing or walking onto a roadway “for the purpose of soliciting rides, employment, business or charitable contributions from, or distributing anything to the occupant of any vehicle.”
The Klan filed suit, saying that ordinance also violated the organization’s First Amendment rights.
While the litigation was pending, the city amended the ordinance by adding a preamble to explain the law’s purpose and by stressing that the city sought to address public safety concerns, specifically that soliciting in a road could lead to a traffic accident. It was the latest version of the ordinance considered in the appeal to the 8th Circuit.
“It’s been a tough time,” Camp said. “At no time did we ever begin to speculate when trying to address this that we’d get into a big First Amendment battle. This isn’t a Klan ordinance.”