The Ku Klux Klan, Public Highways, and the Public Forum
Leeper, Roy, Communications and the Law
In 1987, Daniel Farber and Philip Frickey questioned the value of "grand theories" as a means of First Amendment analysis. Specifically, they argued that grand theories cannot provide sensible answers to concrete problems, cannot justify one grand theory versus another, and cannot exclude other grand theories.(1) In spite of this concern about grand theories, Cass Sunstein suggested that, unlike other areas of legal analysis, First Amendment theory is becoming increasingly formalistic.(2) Echoing Farber and Frickey, Robert Post wrote that while constitutional law involves tension between doctrine and decision, in the First Amendment area there is an increasingly wide divide between the sides of that tension. Part of the reason for this, Post suggested, is that First Amendment doctrine tends to ignore the context that gives rise to a specific case.(3)
These complaints, according to various commentators, seem to be particularly valid in the public forum area. Keith Werhan noted that public-forum analysis is formalistic in an approach that he defined as "a judicial attitude that freezes the application of legal rules in a way divorced from the context and purpose of the rulemaking."(4) Michael Sherago wrote that in the public forum area, the courts are engaged in a search for "rigid formulas."(5) Sunstein made the case that the courts look to nineteenth-century rules to determine if a given area is a public forum.(6) C. Edwin Baker argued that the courts are seemingly increasingly preoccupied with "mechanical tests" and "rigid categories that are too disconnected from the normative commitments underlying constitutional law."(7) Even Supreme Court justices are concerned about this formalistic approach. Michael Mellis wrote that justices Brennan, Marshall, Blackmun, and Stevens "criticize the pubic forum doctrines because they function as `wooden' pigeonholes into which a variety of public places either fit or do not."(8)
In April 1999, District Judge Limbaugh ruled in Cuffley v. Mickes(9) (upheld on appeal) that the Ku Klux Klan had a right to participate in Missouri's Adopt-A-Highway program. The decision was based upon a public-forum analysis and was consistent in outcome with the Arkansas district court case of Knights of the Ku Klux Klan v. Arkansas State Highway and Transportation Department.(10) Cuffley, however, was inconsistent with the Fifth Circuit Court of Appeals decision in Texas v. Ku Klux Klan.(11)
This article argues that the Missouri and Arkansas cases were wrongly decided, whether based upon existing public-forum analysis or other factors. An argument is made that the current approach in the public forum area needs to be rethought, given the criticism of formalism and the grand theory approach to First Amendment analysis.
This section briefly sketches the holdings and rationale, in chronological order, of the three cases set out above.
Knights of the, Ku Klux Klan v. Arkansas State Highway and Transportation Department(12)
The KKK applied for participation in the Arkansas Adopt-A-Highway Program and was turned down by the Highway and Transportation Department. This application was the first one denied out of more than 2200 applications. In holding that the KKK had a right to participate in the program, Judge Waters first held that the purpose of the program was not only to control litter but also to "encourage participation and reward parties by giving them a forum in which to advertise their organization or group."(13) His holding was based upon a public-forum analysis which he said raised three questions: Is the speech constitutionally protected? What is the nature of the forum? Can the regulation be justified?(14) He adopted the standard approach of classifying three types of forum: traditional, designated, and nonpublic, citing Cornelius v. N.A.A.C.P. Legal Defense and Educational Fund, Inc.,(15) and Perry Education Association v. …