Judge: Cape Girardeau leafleting ordinance permanently unenforceable

Friday, October 5, 2012

A federal judge on Thursday made permanent a temporary injunction against enforcing a long-standing Cape Girardeau anti-litter ordinance, quickly ending a legal quarrel between city officials and a Ku Klux Klan group that argued the municipal law was a violation of its free speech rights.

Judge John A. Ross granted a joint motion made by the Traditionalist American Knights of the KKK and the city of Cape Girardeau, signaling that both sides realized that the city's long-standing ban on placing fliers on unoccupied cars would not stand up under legal scrutiny.

The judge also issued an order that the city, its officers and its employees are permanently enjoined from enforcing or threatening to enforce the ordinance. The consent judgment, the judge wrote, "fully and finally resolves" all of the lawsuit's issues raised by both parties.

Tony Rothert, the legal director of the American Civil Liberties Union's Eastern District, represented the KKK in the lawsuit. He said the city discussed the issue during closed session during Monday night's meeting of the Cape Girardeau City Council.

After that, he said, a couple of phone calls were exchanged and the two sides agreed that the fight was one-sided.

"It was a very quick and amicable resolution to the case -- it began and ended in a month," Rothert said.

The issue started early last month, when the Klan group was told its planned trip to Cape Girardeau to distribute its literature under the windshield wipers of unoccupied cars would be a wasted one because of the city's ban on such activities. The Klan filed a lawsuit Sept. 6 that decried the restrictions as an infringement upon the group's free speech rights under the First Amendment. Despite the city's position that the law applied to anyone, regardless of their message, Ross, who is based in St. Louis, granted the Klan's request for a preliminary injunction barring the city from enforcing the ordinance while the issue was being resolved.

The judge's Monday ruling does that.

"The intent of the ordinance was to help avoid littering," Councilman John Voss said. "If the judge feels it is a violation of the First Amendment, we'll undo it, modify it or repeal it so it's not. It's the interpretation of the judge and I'm disappointed, but we'll just have to live with that."

Mayor Harry Rediger declined to comment Thursday.

The Klan's lawyer celebrated the ruling as a victory -- not just for the KKK, but for everyone.

"What's really great about this ending," Rothert said, "is the order protects the First Amendment rights of everyone in Cape Girardeau. This illustrates why, even though this particular organization has a repugnant message, what was accomplished benefits all citizens."

The ACLU has successfully fought other Missouri cities' leafleting restrictions. The ACLU, for example, won a consent in 2010 barring St. Louis from enforcing an anti-eminent domain group from leafleting vehicles. Later that year, the city of Kirkwood repealed its prohibition on leafleting unoccupied vehicles after the ACLU got involved when a man promoting a Martin Luther King Day event ran afoul of the ordinance.

Leafleting vehicles, Rothert said, is especially important because it is a "cheap and effective way" to reach large audiences regardless of who is sending the message.

The city saw the writing on the wall in this case, Rothert said, when the judge granted the temporary injunction last week. The judge's order also calls for the city to pay $5,000 to the ACLU in attorney's fees.



Pertinent address:

401 Independence St., Cape Girardeau, MO

Map of pertinent addresses

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