State of Tex. v. Knights of Ku Klux Klan

United States Court of Appeals,

Fifth Circuit.

No. 94-40425.

STATE OF TEXAS and Texas Department of Transportation, by and
through the Texas Transportation Commission, Plaintiffs-Appellees,

v.

KNIGHTS OF the KU KLUX KLAN, James R. Hall, Jr., individually and
as a representative of the Knights of the Ku Klux Klan and Michael
D. Lowe, individually and as a representative of the Knights of the
Ku Klux Klan, Defendants-Appellants.

July 25, 1995.

Appeal from the United States District Court for the Eastern
District of Texas.

Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO*,
District Judge.

REAVLEY, Circuit Judge:

The Knights of the Ku Klux Klan, James R. Hall, Jr., and

Michael D. Lowe (collectively the "Klan") appeal a summary judgment

issued against them and in favor of the State of Texas and the

Texas Department of Transportation (collectively the "State"),

declaring that the State has no legal obligation to grant the

Klan's application to participate in the Texas Adopt-a-Highway

Program (the "Program"). We affirm.

BACKGROUND

Through the Program, a business or organization adopts two

miles of highway and collects litter there. The State posts signs

naming the adopter at both ends of the adopted miles. In December,

*
District Judge of the Western District of Texas, sitting by
designation.

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1993, the Knights of the Ku Klux Klan, through Michael Lowe as

Grand Dragon and James R. Hall, Jr., filed an application with the

Texas Program to adopt a stretch of state highway on Highway 105 or

Highway 12, in or near Vidor, Texas. Highway 105 runs directly in

front of and provides the primary entrance to the federally

subsidized public housing project in Vidor. Highway 12 is near the

project.

The public housing project in Vidor is under a continuing

order requiring desegregation of the project. See Young v. Pierce,

685 F.Supp. 986 (E.D.Tex.1988). The summary judgment record shows

that efforts to desegregate the housing project have encountered

strong opposition from the Klan. Residents of the housing project

and Vidor public officials have reported numerous threats and acts

of intimidation by the Klan. Black residents who moved into the

project received harassing phone calls and persons tried to break

into their apartment. The mayor of Vidor reported receiving a

warning that the Klan intended to hang her in "black effigy." In

a state court proceeding against the Klan, a witness testified that

a Klan member declared at a rally that "[t]here's going to be blood

in the streets of Vidor." As a result of the attempts by the Klan

to deter desegregation of the project, a Texas district court

deemed it necessary to enter an injunction against the Klan

prohibiting the Klan from intimidating residents, from

demonstrating at the project entrance and from impeding access to

or egress from the project. Hale v. Texas Knights of the Ku Klux

Klan, No. 93-074143 (261st Dist.Ct., Travis County, Tex., Feb. 3,

2
1994).

On January 18, 1994, before taking any action on the Klan's

application to participate in the Program, the State filed suit in

federal district court seeking a declaratory judgment that

rejection of the Klan's application to adopt two miles of highway

near the Vidor housing project would not violate the First

Amendment. The district court granted summary judgment in favor of

the State, and the Klan appeals.

DISCUSSION

We hold that the State will not violate the First Amendment by

rejecting the Klan's application to adopt a portion of highway near

the housing project in Vidor, Texas. Assuming that the Klan's

participation in the Program would constitute speech or expressive

conduct protected by the First Amendment,1 the Program is a

nonpublic forum and the Klan's exclusion from the Program is

reasonable and viewpoint-neutral.

A. Nonpublic Forum

The extent to which the government may limit access to a

forum for purposes of engaging in speech depends on the nature of

the relevant forum. Cornelius v. NAACP Legal Defense and Educ.

1
The district court found that the Klan wishes to have its
name posted and to engage in trash collection on the highway near
the Vidor project in order to send a message of its presence and
its disapproval of desegregation of the project. The Klan
contends it would engage in speech and expressive conduct through
participation in the Program. However, the Klan's conduct would
serve only to threaten and intimidate current and potential
future residents of the Vidor project. We need not decide
whether such speech is protected by the First Amendment. See
United States v. J.H.H., 22 F.3d 821, 825, 828 (8th Cir.1994).

3
Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567

(1985). The government must provide a compelling governmental

interest to restrict access to a traditional public forum or to a

forum designated by the government as public. Id. The government

may restrict access to a nonpublic forum, though, so long as the

restrictions are reasonable and are " "not an effort to suppress

expression merely because public officials oppose the speaker's

view.' " Id. (quoting Perry Educ. Ass'n v. Perry Local Educators'

Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)).

In pinpointing the relevant forum, we must focus on the

"access sought by the speaker." Id. We employ a "tailored

approach" in determining what constitutes the forum within the

confines of government property. Id. In Cornelius, the government

wished to exclude certain groups from participating in a charitable

fundraising drive conducted in the federal workplace. The Supreme

Court defined the forum as the fundraising campaign rather than the

government buildings which housed federal workers. Id. In Perry

Educ. Ass'n, the Court defined the forum as the internal mail

system of a public school rather than the school property. 460

U.S. at 44, 103 S.Ct. at 954; see also Lehman v. City of Shaker

Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770

(1974) (defining forum as advertising spaces on the buses).

Similarly, we define the forum in this case as the Program

rather than the public highways. The Klan does not seek general

access to the public highways for speech purposes or even for

litter retrieval purposes. Rather, by participation in the

4
Program, the Klan wishes to put its members on the highway under

the auspices of the State and gets its name on a sign at a

particular location.

The Program is a nonpublic forum. The Program is not a

traditional public forum, as are public streets and parks. Nor has

it been designated by the State as a public forum. There is no

indication that the State intended to open up the Program for

public discourse. See Cornelius, 473 U.S. at 802, 105 S.Ct. at

3449.

The Program does not have as its purpose the provision of a

forum for expressive activity. See International Soc'y for Krishna

Consciousness v. Lee, --- U.S. ----, ----, 112 S.Ct. 2701, 2707,

120 L.Ed.2d 541 (1992); Cornelius, 473 U.S. at 804, 105 S.Ct. at

3450. The stated purpose of the Program is to allow citizens an

opportunity to support the Department of Transportation's efforts

to control and reduce litter. Tex.Admin.Code tit. 43, § 25.801.

Any opportunity for speech provided by the Program is peripheral to

that central purpose. The government does not create a public

forum merely by permitting some speech. Cornelius, 473 U.S. at

802, 105 S.Ct. at 3449; see also Perry Educ. Ass'n, 460 U.S. at

47, 103 S.Ct. at 956.

The State restricts and controls the size and content of the

signs posted at the ends of the adopted miles. See Tex.Admin.Code

tit. 43, § 25.807(5). Only the name of the adopting group is

placed on the sign, and no discourse or exchange of ideas is

possible. Persons who are not state officials may not erect their

5
own signs without state authorization. Tex.Rev.Civ.Stat.Ann. §

6674v-7(b) (West Supp.1995). Such limitations on the quantity and

content of speech are indicative of an intent to maintain a

nonpublic forum. See Cornelius, 473 U.S. at 800, 804, 105 S.Ct. at

3447, 3450.

In addition, the State has made participation in the Program

available only to certain entities. Tex.Admin.Code tit. 43, §

25.803. For example, individuals and political organizations are

subject to exclusion. See Tex.Admin.Code tit. 43, §§ 25.803,

25.807(4). All applications must be approved by the State

Department of Transportation. Similar limitations have supported

determinations that a program is not a public forum. In Cornelius,

the Supreme Court noted that the government's consistent policy had

been to limit participation in the fundraising campaign to certain

voluntary agencies. The Court noted that this practice was

inconsistent with an intent to create a public forum. 473 U.S. at

804, 105 S.Ct. at 3450. In Perry Educ. Ass'n, the Supreme Court

held that the State had shown no intent to create a public forum

where it allowed access to the school's internal mail system only

to those who received permission from the individual building

principal. 460 U.S. at 47, 103 S.Ct. at 956.

B. Reasonable Restriction

The State may refuse to grant the Klan's application to adopt

a section of highway near the Vidor housing project as a reasonable

restriction on speech in a nonpublic forum. The reasonableness of

a government restriction of access to a nonpublic forum is assessed

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"in the light of the purpose of the forum and all the surrounding

circumstances." Cornelius, 473 U.S. at 809, 105 S.Ct. at 3453.

The Klan wishes to adopt a portion of highway near a housing

project in Vidor, Texas which is under an order to desegregate.

The Klan has engaged in such virile opposition to the desegregation

of the project that a state court has seen fit to enjoin the Klan

from blocking access to the project and from intimidating

residents. The State provided summary judgment evidence indicating

that the residents of the project would feel fear and frustration

if the Klan were allowed to adopt a highway near the project. The

posting of a sign outside of the Vidor project announcing the

Klan's name would likely cause Vidor residents a great deal of

anxiety. The presence of Klan members on the highway in Klan

attire picking up trash at the entrance to the project would invite

strife and interfere with compliance with court orders.

Given this context, the State could reasonably believe that

the Klan's adoption of a section of highway outside the project

would result in further intimidation of the residents of the

housing project and would create unreasonable conflict.2 The

district court found and the State could reasonably believe that

the Program would be used by the Klan as a subterfuge, particularly

after the state court enjoined various Klan activities in Vidor

relating to the project, allowing the Klan to discourage

2
It has not been shown, in this declaratory judgment action,
that violence or strife would necessarily occur if the Klan
adopted a section of highway near the housing project. However,
the State "need not wait until havoc is wreaked to restrict
access ..." Cornelius, 473 U.S. at 809, 105 S.Ct. at 3453.

7
desegregation of the project by means that it could not openly

accomplish. The State may conclude that participation by the Klan

in the program would substantially impede the State's ability to

encourage compliance with the federal injunction requiring

desegregation.

The purpose of the Program is to encourage trash removal on

the highways of Texas. The Program was not meant to be used as a

platform for launching a program of intimidation, nor as a means of

inciting tension and possibly even violence. Use of the Program to

thwart a federal court order requiring desegregation is certainly

not consistent with its purposes. The State would act reasonably

in preventing the use of the Program for such purposes by

prohibiting the participation requested by the Klan.

The State may also reasonably conclude that the adoption by

the Klan of a section of highway outside of Vidor would frustrate

the use of the State's public highways. The summary judgment

evidence supports a finding that project residents and their family

members would be reluctant to use highways adopted by the Klan,

particularly if the Klan was present gathering trash. We must

consider the function and nature of the relevant government

property, in addition to the purpose of the relevant forum within

that property, in evaluating the limits that may be imposed on

speech. Cornelius, 473 U.S. at 800-03, 105 S.Ct. at 3448-49. The

Texas highways exist for the purpose of facilitating movement

around the state. The State does not act unreasonably when it

prohibits speech which would interfere with that function.

8
 The State may also reasonably reject the Klan's application to

protect the privacy of project residents in their homes and to

prevent the residents from becoming captive audiences. One of the

portions of highway which the Klan seeks to adopt provides the only

means of entry or exit for the Vidor public housing project. If

the Klan's name were placed on a sign near the entry to the

project, the residents of the project would be forced to receive

the message of the Klan's presence each time they wished to leave

or return to their homes in the project.

In Frisby v. Schultz, the Supreme Court recognized residential

privacy as a significant governmental interest justifying

limitations on speech even in the context of a public forum. 487

U.S. 474, 483-87, 108 S.Ct. 2495, 2502-03, 101 L.Ed.2d 420 (1988).

In Frisby, the Court emphasized that the speech at issue was

directed at individual residences so that persons became captive

audiences inside their own homes. Id., 487 U.S. at 485, 108 S.Ct.

at 2502. In this case, the Klan wishes to direct speech at the

project as a whole. Although residents of the project could avoid

the message inside their own homes, they would not be able to leave

or enter the project without encountering the Klan's sign. The

imposition of the Klan's message would affect the privacy of the

residents in the housing project where they live. The State would

act reasonably, then, in seeking to protect the residential privacy

of the residents. The Supreme Court has also recognized that, when

a nonpublic forum is involved, the government may limit speech to

protect against its imposition upon a captive audience, even

9
outside of the home. Lehman v. City of Shaker Heights, 418 U.S. at

304, 94 S.Ct. at 2718. The State would not act unreasonably in

disallowing the Klan's message to be imposed upon the captive

audience of residents of the Vidor project.

Some residents of the project might be willing recipients of

the Klan's message. Cf. Frisby, 487 U.S. at 485, 108 S.Ct. at

2503. However, the State is not required to show that its

restriction on speech would limit speech only as to captive and

unwilling recipients of the Klan's message. The State faces no

such requirement that its restraint on speech be "narrowly

tailored." United States v. Kokinda, 497 U.S. 720, 735, 110 S.Ct.

3115, 3124, 111 L.Ed.2d 571 (1990). The State's restriction on

speech must be reasonable, but it need not be the "most

reasonable." Cornelius, 473 U.S. at 808, 105 S.Ct. at 3452.

The State has provided adequate justification for the

exclusion of the Klan from the Program under the circumstances of

this case. The State's refusal to allow the Klan to adopt a

section of highway near the public housing project in Vidor, Texas

is reasonable for the above-stated reasons.

C. Viewpoint Neutral

The existence of reasonable grounds for preventing access to

a nonpublic forum will not justify a State's restriction of speech

where the restriction is actually "an effort to suppress expression

merely because public officials oppose the speaker's view." Perry

Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. at 955. However, the

government is not required to act with content neutrality in

10
limiting access to a nonpublic forum and may make "distinctions in

access on the basis of ... speaker identity." Id., 460 U.S. at 49,

103 S.Ct. at 957. The State's rejection of the Klan's application

to the Program constitutes a viewpoint-neutral restriction on

speech.

There is no indication in the record that the State's attempt

to prevent the Klan from adopting a section of highway outside of

Vidor is actually motivated by a desire to suppress the Klan's

viewpoint. See id., 460 U.S. at 49 n. 9, 103 S.Ct. at 957 n. 9.

The fact that the State wishes to exclude only one group with a

certain viewpoint does not alone make the exclusion viewpoint

based. See Madsen v. Women's Health Ctr., Inc., --- U.S. ----, ---

-, 114 S.Ct. 2516, 2524, 129 L.Ed.2d 593 (1994) (all persons

enjoined were demonstrators against abortion); Perry Educ. Ass'n,

460 U.S. at 49, 103 S.Ct. at 957 (one of two teacher's unions

excluded from internal mail system). The State's desire to prevent

the participation of the Klan in the Program is not due to the

opinions of the Klan, but rather results from the foreseeable

impact of Program participation by the Klan, given the past conduct

of the Klan, upon the peace and privacy of the project residents

and use of the state's highways. Cf. Perry Educ. Ass'n, 460 U.S.

at 49, 103 S.Ct. at 957 (no viewpoint discrimination where the

government excludes a group based on its status rather than its

views); Madsen, --- U.S. at ----, 114 S.Ct. at 2524 (no viewpoint

discrimination where limitations on the speech of persons with

similar viewpoints is based on past conduct of those persons).

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 CONCLUSION

On the specific facts of this case, we conclude that the State

will not violate the First Amendment by refusing to allow the Klan

to adopt a section of highway outside of the housing project in

Vidor, Texas. The State's denial of the Klan's application to the

Project is a reasonable effort to avoid strife and intimidation of

current and prospective residents of the Vidor public housing

project and to promote compliance with a federal desegregation

order. The State's limit on speech is also a reasonable measure to

insure free use of the public highways of the State and to protect

against the imposition of a message on captive recipients.

Finally, the exclusion of the Klan from the Project is viewpoint

neutral.

AFFIRMED.

PRADO, District Judge, concurring:

I concur in the result reached by the majority but I write

separately because I believe a different methodology is

appropriate.

Although I agree that the Adopt-A-Highway program is a

non-public forum, and that the State's offered reasons for

excluding the Texas Knights of the Ku Klux Klan (the "Klan") from

participation in the program are viewpoint-neutral, I do not find

that the traditional test of viewpoint-neutral, reasonable

restrictions is applicable in analyzing a regulatory scheme that

12
lacks restrictions.1

Nevertheless, I find that the state may constitutionally

exclude the Klan from its program under the facts of this case.

Conceding that the Klan has a First Amendment right to participate

in the Program, I find that the Klan's right to express itself in

this non-public forum is surmounted by the State's compelling

interests in ensuring compliance with the state and federal

injunctions affecting the Vidor project, interests which the

majority refers to as "reasonable restrictions."

1
In this case, the statute in question has not been
subjected to a facial challenge, a test this statute may not
survive. See Cox v. State of Louisiana, 379 U.S. 536, 557-58, 85
S.Ct. 463, 466, 13 L.Ed.2d 487 (1965) (finding "it clearly
unconstitutional to enable a public official to determine which
expressions will be permitted and which will not ... by use of a
statute providing a system of broad discretionary licensing
power").

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