Does free speech extend even to groups that are unpopular with the general public, including those considered hateful and unacceptable? Should all groups, whatever their political or religious beliefs, be allowed to participate equally in government programs? Those questions were tested in Cuffley v. Mickes, which pitted the Ku Klux Klan against a state government that didn't want them to receive the publicity which accompanies participation in an Adopt-A-Highway program. The state lost.
The Knights of the Ku Klux Klan, Realm of Missouri, and Michael Cuffley in his capacity as its Unit Recruiter filed a lawsuit against the state of Missouri and the Missouri Highway and Transportation Commission because the Klan's application to participate in the state's Adopt-A-Highway program was denied.
At first, the state didn't take official action on the application and sought court approval to prevent the Klan from participating. This was dismissed and then the state acted on the application, denying it and giving the following as its reasons:
- The Knights of the Ku Klux Klan does not adhere to all state and federal nondiscrimination laws in that it discriminates on the basis of race, religion, color and national origin.
- The Knights of the Ku Klux Klan has a history of unlawfully violent and criminal behavior.
- 42 USC2000(d)4a(I)(A) [Title VI of the Civil Rights Act of 1964] prohibits Missouri Department of Transportation from conferring a benefit to the Knights of the Ku Klux Klan because of the Knights' discriminatory practices, and granting the application would confer such a benefit in contravention of federal law.
- Executive Order 94-03 prohibits state agencies from allowing discriminatory practices on state facilities and prohibits contracting with an organization that discriminates, and, therefore, prohibits the Knights of the Ku Klux Klan from participating in this program.
- The district has placed a moratorium on adoptions on interstate highways within the City of St. Louis.
After this, the Klan filed suit in court, alleging that they were being discriminated against and that their rights to free speech were being violated.
The Supreme Court ruled in favor of the Klan, stating that they had been treated differently from other applicants from the very beginning of the process. The statewide coordinator for the program even admitted that this was the case during the legal proceedings. Moreover, it was undisputed that this special treatment was due solely to the Klan's political and social views:
There are repeated admissions from the State's designee on these points, including the surprising admission that the State thinks it has the right to deny an application on the basis of the applicant's beliefs.
...absent a convincing and constitutional reason for the denial, the evidence leaves us with but one conclusion: that the State denied the Klan's application based on the Klan's beliefs and advocacy. For the last fifty years, the Supreme Court has made it clear that such a denial is unconstitutional...
Even though a person has no "right" to a valuable governmental benefit, and that even though the government may deny the benefit for any number of reasons, there are some reasons upon which the government may not rely. One of those "forbidden" reasons is a groups basic political, social, or religious beliefs. The government may deny some benefit or program to a group which advocates the overthrow of the government, but not to a group simply because it advocates racist policies, communist policies, theocratic policies, and so forth.
Cuffley v. Mickes reinforces the principle that the government may not deny a benefit to a person or group on a basis that infringes on their constitutionally protected interests - especially their interest in freedom of speech. If the government could deny a benefit to a person because of their constitutionally protected speech or associations, their exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Such interference with constitutional rights is impermissible.
The Ku Klux Klan is not the most sympathetic of defendants, but that lack of sympathy is precisely what makes them an important test case: if our free speech protections mean anything, they have to extend even to groups whose views are abhorrent. Once such protections are clearly extended to them, however, everyone less extreme is automatically covered. This should include atheist, secularist, and freethought organizations.
Atheist groups don't share anything in common with the KKK; just the opposite is the case because the KKK is a Christian, religious organization. Nevertheless, both can be the targets of discrimination by politicians and mainstream Christians who don't want such groups' views to receive equal attention and publicity in the public square. For all their complaints about the public square being stripped of religious speech, the reality is that Christians have all the opportunity they want to express themselves in the public square — and this includes extremist Christians like the KKK.
Atheists, in contrast, are attacked mercilessly for displays (like billboards and bus signs) that do little more than announce their existence and say disbelief in gods is compatible with morality or living a good life. Justifications for this are weak at best and generally involve doing precisely what the Supreme Court found to be unconstitutional in Cuffley v. Mickes: denying equal treatment to a group in order to deny them a public voice simply because their views are deemed controversial, unacceptable, offensive, etc.