Federal judge rules against Cape Girardeau in KKK suit

Friday, September 28, 2012

A federal judge's ruling on Thursday will allow the Ku Klux Klan to place fliers on unoccupied cars during a planned visit to Cape Girardeau today, despite the city's longtime ban that local leaders insist was intended to prevent litter, not free speech.

Federal judge John A. Ross granted a preliminary injunction at the request of the Traditionalist American Knights of the Ku Klux Klan, an order that prohibits police from enforcing its leafleting program ordinance until the case can be resolved in the courts. The city's next move was unclear Thursday, but lawyers for both sides said that Ross' written ruling suggests that the Klan has the upper legal hand.

The Klan's lawyer, Tony Rothert of the American Civil Liberties Union in St. Louis, said the ruling was a victory for First Amendment rights to free speech "even when the message is repugnant -- and their message is certainly repugnant."

But Rothert said it was important to note that the judge hasn't settled the matter for good and only allows the Klan to place handbills on unoccupied vehicles without getting arrested or cited.

"Having said that, this is not a close case," Rothert said. "This ordinance is clearly unconstitutional."

Other courts have struck down similar ordinances across the country and Rothert said that it would be "the smart thing" for Cape Girardeau to simply remove the law from the books.

Attorney Al Spradling III, who represents the city in the case, said he was not surprised at the judge's decision. Three U.S. circuits representing several states have overturned such ordinances, Spradling pointed out, although there was one that upheld such a ban.

Spradling, a former Cape Girardeau mayor, intends to talk with members of the Cape Girardeau City Council to see which direction they want to go. The council can opt to try to tighten up the ordinance to alleviate First Amendment questions, he said, or eliminate it from the books. Spradling wasn't certain what his recommendation would be, but he said he suspects it's an unwinnable argument.

"We're fighting an uphill battle, and there's no need to throw good money after bad if it's a futile effort, in my opinion," Spradling said. "The ACLU will want their attorneys fees, as they always do, and there's no need to run up a big bill. Frankly, I don't know if we can tailor this ordinance even tighter than it is to satisfy its constitutional issues."

Spradling faxed a copy of the order to the Cape Girardeau Police Department informing them of the judge's decision. Department spokesman Jason Selzer said officers have been made aware that the ordinance is not to be enforced, though police don't plan to stand guard while the group is here. If a problem arises, Selzer said, the department will address it.

Cape Girardeau Mayor Harry Rediger did not return a phone call late Thursday seeking comment.

The Klan argued in its motion that the city ordinance infringes on its free speech rights and that the freedom of expression outweighs any "inconvenience of having to dispose of any unwanted paper." The Klan's argument primarily relies on a 1998 case in Fort Smith, Kan., in which the 8th Circuit struck down similar ordinances that prohibited placing handbills on another person's vehicle parked on public property unless someone was in the car.

Like the Cape Girardeau law, that community's ordinance applied to all groups regardless of message. But the court held in that case that such ordinances suppress "more speech than is necessary to serve the stated governmental purpose of preventing litter." There are better ways, the court said, to deal with the problem adding that "littering is the fault of the litterbug, not the leafletter."

The head of the KKK group said the judge's ruling came so late that they almost canceled plans to come to town today. While the showing will be smaller, according to imperial wizard Frank Ancona of Park Hills, Mo., the group still plans to place its fliers on cars at some point, though he would not say where.

"I'm glad to see that free speech is still important," Ancona said. "While there won't be a lot of us there [today], the judge's ruling opens the door for us to come back another time."



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