Free Speech Or A Threat? Vermont Supreme Court Decision Highlights Continuing Tension

May 11, 2018

Last week, the court overturned the conviction of a man who put Ku Klux Klan flyers on the Burlington homes of two women of color. The court said the state didn’t prove the action met the threshold of ‘threatening behavior.’

The decision highlights the on-going tension around protecting speech even when it's potentially threatening or hateful.

William Schenk pleaded guilty to leaving KKK recruitment flyers at the homes of two women. The Vermont Supreme Court overturned his conviction.
Credit Rights and Democracy Vermont

In 2015, two women found KKK flyers at their homes. None of their neighbors had gotten them.

The flyers show a robed Klansman, holding a burning cross and the phrase “join the Klan and save our land.”

Police arrested and charged William Schenk with two counts of disorderly conduct. He pleaded guilty, but the supreme court later overturned his conviction.

Their decision doesn't sit right with Jabari Jones, a spokesperson for Black Lives Matter of Greater Burlington.

“Do they have to tie the note to a rock and throw it through their window and then throw a Molotov cocktail?” Jones said. “Like, how obvious does the threat have to be to be taken seriously? Particularly it seems if it's threats against people of color.”

In its decision, the court said prosecutors didn't prove that Schenk's actions went far under Vermont's disorderly conduct statue to be threat.

Jared Carter, an assistant professor at Vermont Law School, said the state had to prove that Schenk’s actions — leaving the flyers — constituted an immediate threat to the two women.

“And that since the activities here were primarily speech — the delivery of some fliers, heinous fliers but speech nonetheless — the state, as a matter of fact, and a matter of law could not meet its burden of proof,” Carter said.

" Like, how obvious does the threat have to be to be taken seriously — particularly it seems if it's threats against people of color." — Jabari Jones, Black Lives Matter of Greater Burlington

The state argued, given the KKK’s history of violence and because the individuals who got the fliers were people of color, Schenk’s conviction should stand.

VPR couldn’t reach the two women who received the fliers, but according to court records, both said the incident scared them.

One said based on the history of the KKK she feared for her safety.

Jones with Black Lives Matter of Greater Burlington said the court’s decision ignores the KKK’s extensive history of violence and intimidation.

“If we can't look at white supremacist terrorist speech in that context then what we're doing is actually reinforcing and upholding white supremacist violence,” Jones said.

But the American Civil Liberties Union of Vermont says it's a matter of protecting all free speech.

Staff attorney Jay Diaz said in this case, the speech isn't a threat.

“When you have a hate group doing things like this and people are afraid how do we reconcile that with our long standing traditions of free political speech,” Diaz said.

"We want to be careful not to allow the criminalization of speech that gets to political issues ... We want to be very careful with that because the First Amendment, in the end, protects everybody." — Jay Diaz, ACLU of Vermont

The group filed a brief supporting the dismissal of Schenk's charges.

Diaz said the KKK is a hate organization and the ACLU condemns its actions.

“However, we want to be careful not to allow the criminalization of speech that gets to political issues," Diaz said. "Our country has a long history of criminalizing political speech for organizations that we support such as the NAACP and many others. So we want to be very careful with that … because the First Amendment, in the end, protects everybody.”

Protecting free speech and protecting individuals is a difficult for courts, according to Carter, the law professor.

“The Vermont Supreme Court has decided to deal with this case on simply interpreting the statute rather than reaching these bigger questions of how far can we limit speech, is this particular activity by Mr. Schenk constitutionally protected or not,” Carter said.

Carter said the court left those bigger questions for another day.

Disclosure: Jared Carter is an occasional VPR commentator.