Strange Bedfellows

What does David Duke, perhaps the country's most notorious white supremacist, have in common with Kweisi Mfume, the head of the National Association for the Advancement of Colored People (NAACP)?

Not much, of course, except now their organizations find themselves on the same side of a lawsuit filed by South Carolina Attorney General Charlie Condon. Unfortunately for the NAACP, the side that they share with their strange bedfellow may be the losing one.

It all started out as a replay of a familiar 1960s theme: a Southern politician takes aim at NAACP civil rights activities. But along came David Duke and his European-American Unity and Rights Organization (EURO) and things took a 21st-century twist.

The conflict pitting the NAACP and EURO against Attorney General Condon began with a dispute over the Confederate battle flag flying over the Capitol dome in Columbia.

The NAACP launched a boycott of South Carolina's tourist industry in an effort to have the flag removed. In response to the boycott, the flag was relocated to a monument on the capitol grounds under compromise legislation brokered by South Carolina Gov. Jim Hodges.

But Hodges' compromise bill failed to satisfy either the NAACP or the flag's supporters, who included the conservative Charlie Condon.

The NAACP continued the boycott because the Confederate flag remained on the statehouse grounds. Condon, on the other hand, continued to be sore over the fact that the flag had lost its place of prominence.

'Outside Agitators'
From the beginning, Condon, who was running for governor, took an aggressive stance against the NAACP boycott.

He wrote an open letter to Gov. Hodges and the legislature likening the NAACP's demands to those of "hostage-takers, terrorists, highjackers [sic] [and] any other group that uses tactics of fear, threat, or intimidation to gain their demands." He then announced plans to open an investigation into the legality of the boycott.

Hearkening back to Southern politicians' denunciations of "outside agitators" during the civil rights movement, Condon said: "We ... need to send a strong signal to the NAACP agitators that it is 'quitting time.' Working together, we can slam the door shut on the NAACP's incessant demands and stop its insatiable appetite for agitation."

The NAACP did not back down. This March 1, the organization began conducting "border patrols" at welcome centers on the interstate highways leading into South Carolina to reinforce its continuing boycott.

Condon responded in a bellicose manner. "I am drawing the line in the sand," he said, in language reminiscent of George Wallace's famous speech in support of segregation.

"If the NAACP uses South Carolina's rest stops and welcome centers to urge visitors not to buy in South Carolina or to stage demonstrations or protests, I will take legal action."

The NAACP "border patrols" began as planned with no immediate legal response from the attorney general. Then EURO members showed up at the welcome centers one day to provide their own "welcome patrols" as a counterpoint to the NAACP's protesters.

Despite statements by EURO national director Vincent Breeding that EURO had no plans to conduct additional "welcome patrols" in the future, Condon quickly filed a lawsuit against both the NAACP and EURO alleging that their protests were illegal.

Two Kinds of Forums
Condon no longer had to fear the uncomfortable parallels to civil-rights era lawsuits attempting to suppress NAACP activities. He simply argued that he was enforcing the state's laws in an even-handed fashion.

"In a system based on equal justice," he said, "we cannot allow one group access and then deny that same access to other groups."

Condon's complaint states that the welcome centers exist to provide the "weary traveler" with the chance to "relieve the call of nature and to perhaps get a snack or look for lodging or attractions" without being "a captive audience to the views of any person or group."

Accordingly, Condon argues that the centers are "not a traditional public forum," so that the "government can prohibit speech or expressive activity which is not related to the limited purposes" that the centers serve.

Condon's argument may be right.

The distinction between traditional public forums and non-public forums is a significant one. In a traditional public forum — such as a public park or the grounds of a state capitol — the ability of the state to restrict speech is "strictly circumscribed." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).

Restrictions on speech in public forums must be "content-neutral, be narrowly tailored to serve a significant governmental interest, and allow for sufficient alternative channels of communication." Id. at 45.

But in a non-public forum, the only real limit on a state's ability to restrict speech is that it must refrain from "suppress[ing] expression merely because public officials oppose the speaker's view." Id. at 46.

In South Carolina, EURO's entry into the controversy may doom the NAACP's welcome center protests. Courts that have considered the question have held that interstate highway rest stops are not public forums. Jacobsen v. Bonine, 123 F.3d 1272, 1274 (9th Cir. 1997); Sentinel Comm. Co. v. Watts, 936 F.2d 1189, 1205 (11th Cir. 1991).

In suing groups with such divergent views, Condon is well positioned to claim that he acted with malice towards neither.