The American Civil Liberties Union of Vermont is arguing against the criminal prosecution of a man who faced charges for distributing Ku Klux Klan leaflets at the homes of two women of color.
William Schenk was accused of posting fliers at the home of two Burlington residents. The fliers depicted a hooded Klan member on horseback, holding a burning cross, with the words “Join the Klan, Save our Land.”
In the case, now filed with the Vermont Supreme Court, the Vermont ACLU argues that the prosecution of Schenk could have broad implications for the First Amendment.
Schenk, 22, was arrested last November and charged in criminal court in Chittenden County with two misdemeanor counts of disorderly conduct with an enhanced penalty for hate crimes.
His attorneys filed a motion to dismiss the charges on the grounds that they were a violation of Schenk’s First Amendment rights. Judge Gregory Rainville dismissed the motion, allowing the case to proceed.
Schenk accepted a deal in May, pleading no contest to the charges. He was sentenced to four months in prison for each charge, to be served concurrently with credit for the five months he already had served. He was released that day into the custody of sheriff’s deputies from Clinton County, New York, where he faced unrelated criminal charges.
Schenk’s plea agreement also included the condition that Schenk could appeal Rainville’s denial of the motion to dismiss his case.
The appeal has been filed with the Vermont Supreme Court, though no court date has been set yet, according to the Vermont ACLU.
The Vermont ACLU filed an amicus brief with the state’s top court opposing the state’s prosecution of Schenk, the organization announced on Monday.
The civil liberties group argues that the criminal prosecution of Schenk infringes on constitutionally guaranteed rights of free speech and, more broadly, could have a chilling effect on political speech.
The group describes the KKK as a “despicable hate group which advocates an abhorrent ideology of white supremacy.” However, the ACLU argues, the Constitution protects speech that is unsavory, even hateful.
In some instances, the ACLU says, prosecution is an appropriate response to speech. Those instances “are the exception, not the rule,” ACLU staff attorney Jay Diaz said on Monday.
The ACLU challenges the assertion that Schenk’s posting of the fliers represented a true threat.
“The speech of the KKK and other hate groups like the KKK is abhorrent. It’s awful. It’s despicable,” Diaz said. However, he and the ACLU argue, allowing criminal prosecution based on speech has broad implications.
“If any speech can be criminalized when it’s just speech, that endangers all speech,” Diaz said.
In a statement, ACLU Executive Director James Lyall said the organization challenges institutional racism and discrimination.
“We will continue that work while also fighting to preserve core First Amendment freedoms, recognizing that these objectives are not at odds but are in fact mutually dependent,” Lyall said.
Chittenden County State’s Attorney TJ Donovan said he expected the appeal, and welcomed a decision by the highest court.
“This is an interesting legal question which we do need the Supreme Court to rule on,” Donovan said on Monday.
The case, he said, involves a complex area of law. However, he argues the case shows a clear effort to target certain people.
“This was not somebody standing on the street corner engaging in speech by holding a KKK sign,” Donovan said.
“The KKK flier which clearly communicates a threat that was directed at two women of color is not protected speech because implicit in that flier was a threat,” he said.