KKK is runt of the litter, but the state must not censor its garbage

It is a good sign -- and an ironic one -- that the Ku Klux Klan has fallen upon such hard times that its signature issue around the nation has become the right for its members to pick up trash in exchange for little highway signs.

In Arkansas, just 12 miles south of Branson, Mo., the Klan has proudly slithered along the side of an "adopted" road for four years, although the state is now making sounds that the group's tenure -- and its oft-vandalized adoption signs -- may soon be a thing of the past. The Klan has lost battles, but gained much-craved attention, over taking part in highway-adoption programs in Florida and Texas.

And now, right here in St. Louis, the Klan has experienced a sense of euphoria previously reserved for its joy in setting crosses aflame: The courts have ruled, after a five-year battle, that the Klan indeed has a right to participate in Missouri's Adopt-a-Highway program.

Last week, two signs announcing the Klan's trash-related citizenship were erected along Interstate 55 between Lindbergh Boulevard and Butler Hill Road. Almost instantly, the signs were stolen, but that's as unimportant as the Klansmen themselves.

What is important is a principle that is easily lost in the emotion evoked by the Klan: The government can't be allowed to decide which political groups enjoy basic freedoms and which ones don't.

"This issue is really about the power of the state," says local attorney Bob Herman, who represents the Klan on this case and another involving sponsorship of KWMU-FM programming on behalf of the American Civil Liberties Union. When state government set up the program to give individuals and groups public credit for good citizenship along the highways, he says, it established what is legally termed "a nonpublic public forum," opening the door even to those deemed detestable.

"The one thing the government cannot do is viewpoint discrimination," Herman says. "Once they've opened the program for people to express their goodness, then they can't say, "We only allow people we approve of and not people we don't approve of.'"

The Klan is the first group rejected for Missouri's Adopt-a-Highway program in the 12 years of its existence, says Jeff Briggs, spokesman for the state Department of Transportation (MoDOT). Briggs says 4,700 groups and individuals currently care for more than 7,000 miles of Missouri roadways.

But why not the Klan?

"This is a taxpayer-supported program run by MoDOT, and we have a responsibility to those taxpayers and to the public interest," Briggs told me. "This particular group has a history of illegal behavior, violent behavior, racist behavior, and that's why we've tried to exclude them.

"It isn't about their beliefs. The distinction isn't whether MoDOT agrees or disagrees with the group but whether it is in the public interest to exclude their participation."

Superficially, that sounds fine. We all know the Klan's long history as a terrorist organization targeting blacks, Jews, Catholics and others it deems impure, and there's no doubt the vast majority of Missourians agree with Gov. Mel Carnahan's statement that the Klan sign is an "embarrassment" to the state.

But it is indeed the state we're talking about here. The Bill of Rights was expressly designed to prevent government at all levels from making the kind of distinction it is trying to make by deeming the Klan generally unfit for participation in the public forum.

"The basic mechanics of the program is up to the Highway Department, and there's no First Amendment engine that requires them to open it, but once they do open it, then their selection criteria is restricted by the First Amendment," says Herman. "What government official are we going to appoint to determine good people vs. bad people or good ideas vs. bad ideas? Isn't it dangerous to give that power to a person or a committee or even an elected official?"

MoDOT doesn't think so.

"Our argument is that the Adopt-a-Highway is not a free-speech issue," says Briggs. "We want to recognize groups that are doing a good community service, and that is at our discretion. It's not everyone's constitutional right to participate in a highway-beautification program.

"In order for this program to work, it has to be taxpayer-run and state-run, and it will not work if just anyone who feels like it gets to put up a highway sign."

But why not? Although it is distasteful to most of us to see the Klan's name along a highway, do we really want MoDOT -- or any other government agency -- to define the boundaries of taste and to limit the highway program on the basis of its judgments? If the Klan can be banned because of a generalized view of its past (not necessarily even related to its current members), then what about all the other controversial groups that might push the envelope?

Some people would have similar concerns about a White Citizens Council or the Nazis. Others might take offense at the communists, socialists, the Nation of Islam, Greenpeace or many other groups that evoke strong feelings. And what's to keep the list of "unacceptable" individuals and groups from growing?

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