Last October, some 30 Klansmen marched through the streets of Asheville, N.C., wearing white robes and carrying Confederate flags. A crowd of nearly 1,000 counter-demonstrators confronted the Klan. Angered by the Klan's message of hate, crowd members shoved the Klansmen and hurled epithets and rocks at them.
The American Knights of the Ku Klux Klan received so much free publicity from the event that it has scheduled another rally in Asheville.
But this time, the group's local leader, Robert Moore, warned, "We're coming there to have a peaceful assembly ... but [if] they throw one rock, it won't take us but 88 seconds to wipe out what's standing across the street, and God forbid if there's any children there."
In the face of such threats, Asheville authorities began considering whether to allow the rally scheduled for May 2.
Asheville's situation is not unique. When the Ku Klux Klan announces plans to march in any town, city officials frequently ask whether they can ban the march or whether they must allow it under the First Amendment. If they allow the event, officials also often ask whether they can force the Klan to reimburse the city for the cost of providing security.
Cities should tread cautiously in these situations to ensure that they are protecting both public safety and the Klan's right to free speech under the First Amendment. Because the right to free speech extends to everyone — including unpopular groups like the Klan — officials should always seek the advice of counsel before deciding on a course of action.
Nevertheless, there are several general legal principles that should inform authorities' decision-making in this area.
Clear and Present Danger
The First Amendment allows the Klan to march, and authorities can only prevent such marches in rare circumstances. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Specifically, states are entitled to prevent public gatherings if a "clear and present danger" to public safety exists. Cantwell v. Connecticut, 310 U.S. 296, 308 (1939).
But proving that a demonstration poses such an imminent threat is extremely difficult, and most Klan rallies end without violence. Even when cities can point to a clear and present danger, they will have to provide the Klan with notice and a hearing before blocking its speech on this basis. Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 180-81 (1968).
The mere fact that counter-demonstrators threaten violence is not a reason to ban a march. As the Supreme Court has noted, "under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Street v. New York, 394 U.S. 576, 592 (1969).
Time, Place and Manner
Despite these realities, local governments are not powerless to protect the public from the risk of violence associated with Klan rallies. Authorities can use a permit requirement to regulate the time, place and manner of the Klan's public demonstration. Forsyth County, 505 U.S. at 130. Most cities already have permit systems in place.
To satisfy the First Amendment, permit schemes must meet various requirements. The scheme cannot delegate too much discretion to a government official. A restriction on a march or demonstration "must not be based on the content of the [speaker's] message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication." Id.
Authorities cannot deny the Klan a parade permit simply because they dislike the Klan's message. Doing so would constitute impermissible viewpoint discrimination. But cities can impose reasonable time, place and manner restrictions on Klan demonstrations.
A federal court of appeals, for instance, has upheld a restriction prohibiting weapons at a Klan rally. Potts v. City of Lafayette, Ind., 121 F.3d 1106, 1111-12 (7th Cir. 1997). This restriction was lawful because it was not based on the speaker's views, was narrowly tailored to protect public safety, and left open alternative means of communication.
By implementing similar restrictions, cities like Asheville can help protect the public while affording the Klan its right to free speech.
Some local governments have also sought to make the Klan reimburse them for the costs of providing security at Klan parades. The city of Huntingdon, W. Va., for example, recently charged the American Knights of the Ku Klux Klan $17,000 for police protection.
But because these charges "unconstitutionally tie the amount of the fee to the content of the speech," they squarely violate the First Amendment. Forsyth County, 505 U.S. at 137. Imposing additional pre-conditions on Klan rallies such as liability insurance and reimbursement for clean-up costs is likewise unconstitutional. Invisible Empire, KKK v. Mayor of Thurmont, 700 F. Supp. 281, 285 (D. Md. 1988).
In sum, cities should be very wary before they take steps to prohibit the Klan from marching through their town. When the Klan comes knocking at your town's door, the best approach is usually to treat it like any other organization and impose only those restrictions that are narrowly tailored to protect public safety, like prohibiting weapons at a rally.
By following this course, cities like Asheville can help prevent violence from erupting while safeguarding the Klan's right to free speech under the First Amendment.