South Royalton — The state’s top court is considering whether the distribution of Ku Klux Klan fliers is protected speech.
The five-justice Vermont Supreme Court met in a packed Vermont Law School lecture hall on Wednesday to hear the appeal case of William Schenk, a North Carolina man who left KKK recruitment fliers at the homes of two minority women in Burlington last year.
Schenk was convicted in April of two counts of disorderly conduct and was sentenced to 120 days in jail, a longer sentence than usual because the court considered his offense a hate crime. He was defended by Rebecca Turner, a lawyer from the state Office of the Defender General.
“This is not a threat under the First Amendment, this is core protected speech,” Turner told the justices, who also heard five other cases on Wednesday.
The flier Schenk used had a picture of a Klan member in robes on horseback holding a burning cross. The slogan “Join The Klan And Save Our Land!” is emblazoned on the top of the page.
The justices sought to clarify if Schenk meant to threaten the women he gave the fliers to, a key part of the state’s argument.
Justice Marilyn Skoglund asked whether the flier’s slogan was threatening or if the flier was threatening because it was distributed to just two minority women.
Skoglund offered for the sake of argument the hypothetical slogan “Join the Klan and Make America Great Again,” a reference to Republican President Donald Trump’s campaign slogan, inciting laughter and a few grimaces in the crowd.
The state lawyer arguing to uphold Schenk’s conviction, Aimee Griffin, said after the laughter died that targeting the minority women with such a racially charged image is what made the flier threatening.
The American Civil Liberties Union had said in a letter to the Burlington trial court that convicted Schenk that his distribution of fliers, no matter how egregious, is protected speech under the First Amendment.
In Vermont, someone who breaks the disorderly conduct law must have done something that is significantly physical, like fighting or obstructing traffic.
The previous court ruled that because Schenk put fliers in the door and in the mailbox of the women’s homes, he was intruding upon their privacy, which was considered to be a significant enough physical action and in part led to his earlier conviction.
If any of the decisions the Vermont court decides is appealed, the case would go straight to the U.S. Supreme Court. The Supreme Court can decide which cases it wants to hear, meaning if it decides not to take a Vermont case the Vermont Supreme Court ruling likely will be final.
Decisions will be handed down by the justices as early as next month.