Amicus Curiae Brief — Yarnell v. Cuffley

a OUPIGHR GUUN, Vo ff |

No. 00-289 FILED

SEP of 2000

In The

Supreme Court of the United States,

¢

J.T. YARNELL, in His Official Capacity as , Chief Engineer

of the Misso, oe of Transportation, et al.,

Petitioners,

MICHAEL CUFFLEY and the

KNIGHTS OF THE KU KLUX KLAN,

Respondents.

¢

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

o

BRIEF OF AMICI CURIAE VIRGINIA, ARKANSAS,

CALIFORNIA, COLORADO, DISTRICT OF COLUMBIA,

IDAHO, INDIANA, IOWA, KANSAS, KENTUCKY,

LOUISIANA, MAINE, MARYLAND, MINNESOTA,

MISSISSIPPI, MONTANA, NEVADA, NEW YORK,

OHIO, OKLAHOMA, OREGON, PENNSYLVANIA,

RHODE ISLAND, SOUTH CAROLINA, TENNESSEE,

VERMONT, WASHINGTON, WEST VIRGINIA,

AND WYOMING IN SUPPORT OF PETITIONERS

¢

Mark L. EARLEy

Attorney General of Virginia

Wiiuram H. Hurp

Solicitor General

Counsel of Record

AsHLeEY L. Tay.Lor, JR.

Deputy Attorney General

ALISON P. LANDRY

VALERIE L. Myers

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800)

OR CALL COLLECT (402) 342.9891

Mark Pryor

Attorney General

of Arkansas

323 Center Street

Suite 200

Little Rock, Arkansas 72201

Bill Lockyer

Attorney General

State of California

1300 I Street, Suite 125

Sacramento, California

94244-2550

Ken Salazar

Attorney General

of Colorado

1525 Sherman Street

Denver, Colorado 80203

Robert R. Rigsby

Corporation Counsel

District of Columbia

441 4th St. N.W.

Washington, D.C. 20001

Alan G. Lance

Attorney General

of Idaho

P. O. Box 83720

Boise, Idaho 83720-0010

Karen M. Freeman-Wilson

Attorney General

of Indiana

219 State House

Indianapolis, Indiana 46204

Thomas J. Miller

Attorney General

of Iowa

Hoover State Office

Building

Des Moines, Iowa 50319

Carla J. Stovall

Attorney General

of Kansas $

120 S.W. 10th Avenue

Topeka, Kansas 66612-1597

Albert B. Chandler, III

Attorney General —

of Kentucky

The State Capitol

Frankfort, Kentucky 40601

Richard P. Ieyoub

Attorney General

- of Louisiana

One American Place

P. O. Box 94005

Baton Rouge, Louisiana

70804-9005

Andrew Ketterer

Attorney General

of Maine

Six State House Station

Augusta, Maine 04333-0006

J. Joseph Curran, Jr.

Attorney General

of Maryland

200 St. Paul Place

Baltimore, Maryland 21202

Mike Hatch

Attorney General

of Minnesota

75 Constitution Avenue

St. Paul, Minnesota

55155-1002

Mike Moore

Attorney General

of Mississippi

P. O. Box 220

Jackson, Mississippi 39205

Joseph P. Mazurek

Attorney General

of Montana

P. O. Box 201401

215 N. Sanders

Helena, Montana

59620-1401

Frankie Sue Del Papa

Attorney General

of Nevada

1263 S. Stewart Street

Carson City, Nevada 89712

Eliot Spitzer

Attorney General

of New York

The Capitol

Albany, New York 12224

Betty D. Montgomery

Attorney General

of Ohio

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17th Floor

Columbus, Ohio 43215

W. A. Drew Edmondson

Attorney General

of Oklahoma

2300 N. Lincoln Boulevard,

Suite 112

Oklahoma City, Oklahoma

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Hardy Meyers

Attorney General

of Oregon

1162 Court Street, N.E.

Salem, Oregon 97310

D. Michael Fisher

Attorney General

of Pennsylvania

Strawberry Square

Harrisburg, Pennsylvania

17120

Sheldon Whitehouse

Attorney General

of Rhode Island

150 South Main Street

Providence, Rhode Island

02903

Charlie Condon

Attorney General

of South Carolina

P. O. Box 11549

Columbia, South Carolina

29211

Paul G. Summers

Attorney General and

Reporter of Tennessee

425 Fifth Avenue North

Nashville, Tennessee 67243

William H. Sorrell

Attorney General

of Vermont

109 State Street

Montpelier, Vermont

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Christine O. Gregoire

Attorney General

of Washington

1125 Washington Street

P. O. Box 40100

Olympia, Washington

98504-0100

Darrell V. McGraw, Jr.

Attorney General

of West Virginia

State Capitol

Charleston, West Virginia

25305

Gay Woodhouse

Attorney General

of Wyoming

123 Capitol Building

Cheyenne, Wyoming

82002

ER Porm

TABLE OF CONTENTS

Page

pro ee iy 8 yy .. rrr ii

INTERESIS OF AMICI CURIAE..........000.ss000: 1

Es CE IEEE oon ccccnnccnccsencecenes 2

REASONS FOR GRANTING THE WRIT ........... +

Summary (SUA See hn aRehe es yunesene’s Settee eens 4

THE HIGHWAY SIGNS AT ISSUE ARE THE SPEECH

8 ET eee reer er re eT ee Te eee 5

A State Has A Right To Control Its Own Speech... 5

Adopt-A-Highway Signs Are The Speech Of The

ee ea wake kn éuwee eae 7

THE KLAN MAY BE DENIED A SIGN UNDER PICK-

Ne Nee ek cds Obes eekes 10

ee re daa kw bab eas xs Caw 14

li

TABLE OF AUTHORITIES

Cases - Page

Capitol Square Review and Advisory Bd. v. Pinnette,

See Sis COO CRE WA a cdc ce hwy na renadeuascn ieee. 2

Marshall v. Bramer, 110 F.R.D. 232 (W.D. Ky. 1985),

afd, G26 F.2d SS (Gtr Cik. TSG) «2. oe vecccanssvcs. 2

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334

(RIPE s 0a 0s 0 bk baa bas conan es Sheen ee ba eaaseaes 9

McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985)..... 2

Pacific Gas & Elec. Co. v. Public Utilities Comm'n,

GIS Tis, bes aah S eo weve wlaertccuscakeevieeerus 9

Perry Educ. Ass‘n v. Perry Local Educators Ass'n, 460

ke 2) PEPE Tree eer ee ee 7

Pickering v. Board of Educ., 391 U.S. 563 (1968)... passim

Rosenberger v. Rector & Visitors of the Univ. of Va.,

Fae Gla EK CONE hoo dv cau eangeaeeedecwese cians 4, 6

Rast o. Suitigan, SUD US. 179 CRSS1). oc cccciccciaceses 6

Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075

Gee GR BOS oa. ees asukanienerepeinwcvugecesd 11

United States v. National Treasury Employees Union,

DE MA GE CRP Sao es obA ca cebneusnackwanees passim

United States v. O’Brien, 391 U.S. 367 (1968)......... 14

Waters v. Churchill, 511 U.S. 661 (1994)........... 11, 12

Wooley v. Maynard, 430 U.S. 705 (1977)............... 6

lil

TABLE OF AUTHORITIES - Continued

STATUTES AND REGULATIONS Page

Mo. Cope Rac., tit. 7, § 10-14.030(1)......cccccccceess 8

Mo. Cope Rec., tit. 7, § 10-14.030(2)(A).............. 11

OTHER

Bill Dedman, Klan Gets Wish, But Fight Over Project

Continues, New York Times, Dec. 4, 1999 ........ 8, 12

Klan Kept Out of State Road Program, WASHINGTON

oe PPT eee ey rer re eee 13

Southern Poverty Law Center, Intelligence Project:

Hate Incidents 1999 <http:/ /www.splcenter.org /

intelligenceproject/ip-index.html> (visited

oe OO eee Tree eter ree 3

BRIEF OF AMICI CURIAE VIRGINIA, ARKANSAS,

CALIFORNIA, COLORADO, DISTRICT OF COLUMBIA,

IDAHO, INDIANA, IOWA, KANSAS, KENTUCKY,

LOUISIANA, MAINE, MARYLAND, MINNESOTA,

MISSISSIPPI, MONTANA, NEVADA, NEW YORK,

OHIO, OKLAHOMA, OREGON, PENNSYLVANIA,

RHODE ISLAND, SOUTH CAROLINA, TENNESSEE,

VERMONT, WASHINGTON, WEST VIRGINIA,

AND WYOMING IN SUPPORT OF PETITIONERS

INTERESTS OF AMICI CURIAE

The Amici are among the States that share the deep

concern felt by Missouri at the prospect of being forced to

honor the Ku Klux Klan on signs posted by the State

along public highways. Each of the Amici operates an

adopt-a-highway program similar to the one operated by

Missouri.! Each seeks to promote civic responsibility—and

save taxpayer dollars—by recruiting, training and coor-

dinating volunteers to assist in performing an essential

governmental function: keeping the roadsides free of

trash. Each has chosen to erect signs recognizing the

volunteers recruited to perform this task. None have

dedicated those signs to the speech of those volunteers.

Even less have the States dedicated their signs to the

speech of organizations that come to the program unbid-

den and unapproved. Yet, all the States may be deemed to

have done so if courts in their own jurisdictions follow

the decision of the Eighth Circuit.

The Amici are persuaded that the court of appeals has

erred and that the Constitution does not require the signs

1 Vermont is an exception. It does not operate an adopt-

a-highway program, but supports the rights of the States, as

described in this brief.

the Klan demands. The issue is of such importance to the

Amici that they urge the Court to take it up now, rather

than leave it to be fought over State-by-State and court-

by-court. Protracted litigation on a matter of such

obvious sensitivity carries with it the danger of unneces-

sary societal dissension and loss of public confidence in

our institutions of government. For these reasons, the

Amici respectfully urge the Court to grant the petition for

certiorari and to reverse the decision of the court of

appeals.

FACTUAL BACKGROUND

There is no need to repeat here the facts of this

particular case. They are presented by the petition for

writ of certiorari filed by the State of Missouri. The Amici

do, however, wish to underscore those broader societal

facts that continue to cause concern about the Ku Klux

Klan, and that make urgent the need to resolve the issues

presented by this appeal. “There is little doubt that the

Klan’s main objective is to establish a racist white govern-

ment in the United States.” Capitol Square Review and

Advisory Bd. v. Pinnette, 515 U.S. 753, 770 (1995) (Thomas,

J., concurring). “There is uncontradicted evidence that

violent racism has become the Klan’s hallmark and has

not subsided to any appreciable extent since the Klan’s

founding shortly after the Civil War.” McMullen v. Carson,

754 F2d 936, 938 (11th Cir. 1985). Accord, Marshall v.

Bramer, 110 F.R.D. 232, 235 (W.D. Ky. 1985) (taking judi-

cial notice of numerous “cases in which the Ku Klux Klan

is identified as a violence-prone group with a history of

harassing, intimidating and injuring blacks and members

of other minority groups”), aff'd, 828 F.2d 355 (6th Cir.

1987).

As shown by records maintained by the Southern

Poverty Law Center, violence, vandalism and intimida-

tion continue to be perpetrated by Klansmen, or in the

Klan’s name. Recent examples include incidents last year

in California, Florida, Maryland, Tennessee and Virginia

in which the property of black Americans-including one

church-was defaced with the mark, “KKK.” Cross burn-

ings were perpetrated in many regions of the country,

and a Pennsylvania Klansman was convicted in Virginia

for burning a cross with intent to intimidate. Arson,

death threats, rape and attempted murder were also

traced to Klansmen in several states. See Southern Pov-

erty Law Center, Intelligence Project: Hate Incidents 1999

<http://www.splcenter.org/intelligenceproject/ip-

index.html> (visited Sept. 18, 2000).

Against this background, States now face the pros-

pect of being forced to validate the Klan through the

erection of highway signs announcing its presence as a

partner of government. The Amici view such signs as

interfering with the right of States to control their own

speech, making them implicit apologists for a group

opposed to the fundamental principles on which our

governments are founded. Even if such signs are viewed

as the speech of the Klan, they are nevertheless likely to

disrupt the efficiency of government, including the effi-

ciency of the very program that adopt-a-highway signs

are intended to promote. Either way, the facts not only

support the States in denying signs to the Klan, but

underscore the importance of the Court’s hearing this

appeal.

e

REASONS FOR GRANTING THE WRIT

Summary

Whose speech is it? This is the fundamental issue in

this case. Yet it is an issue which the court of appeals cast

aside as irrelevant. The district court also erred; it took

up the issue but decided it incorrectly. The speech at

issue is found on signs posted by a State in its right-of-

way and recognizes organizations that do the State’s

work. The signs are not the speech of the organizations

they recognize. They are the speech of the State, be it

Missouri or any of the other forty-seven States that oper-

ate similar adopt-a-highway programs. As this Court has

repeatedly recognized, government has the right to con-

trol its own speech. See, e.g., Rosenberger v. Rector & Visi-

tors of Univ. of Va., 515 U.S. 819 (1995). The First

Amendment is not implicated. The Court should hear this

case in order to vindicate and further clarify the right of

States to engage in speech.

Moreover, even if such a highway sign were the

speech of the organization it names, the State should still

be free to prevent the Ku Klux Klan from participating in

the adopt-a-highway program and/or from announcing

itself on the signs that ordinarily accompany such partici-

pation. As this Court has recognized, government as

employer may impose restraints on the job-related speech

of its employees that it could not impose on the public at

large. Such restraints are not subject to strict scrutiny but

are judged by the balancing test described by this Court

in Pickering v. Board of Educ., 391 U.S. 563 (1968) and

United States v. National Treasury Employees Union, 513 U.S.

454 (1995) (“NTEU”). When volunteers undertake to per-

form an essential governmental function under govern-

mental supervision-such as cleaning trash from the

roadside-they subject themselves to the same restraints

as could be imposed by government on the employees

whose tasks they assume. The restraint on speech

imposed here by Missouri satisfies the balancing test of

Pickering/NTEU. The Court should hear this case in order

to vindicate and clarify the right of States to use volun-

teers without surrendering the authority necessary to

manage public business efficiently and effectively.

.

THE HIGHWAY SIGNS AT ISSUE ARE THE

SPEECH OF THE STATE.

A State Has A Right To Control Its Own Speech.

The First Amendment protects citizens against gov-

ernmental interference with their freedom of speech. It is

a cherished freedom and one that the courts guard zeal-

ously, and rightly so. Yet, in its zeal, the court of appeals

has minimized the fact that government can also engage in

speech. When it does, the content of that message does

not implicate free speech guarantees of the First Amend-

ment.

Government speech is commonplace. Sometimes, the

purpose of the speech is to advance a governmental goal

or policy, such as discouraging teenage drinking, promot-

ing tourism or encouraging use of seatbelts. At other

times, the purpose is simply to commemorate some per-

son, place, or event that figures in the public life of the

state or nation. When a governor issues a proclamation

recognizing Consumer Protection Week or Agriculture

Week in his State, it is government speech. When a State

legislature erects a monument to the State’s war dead, it

is government speech. When the U.S. Postal Service

issues commemorative stamps to “Celebrate the Cen-

tury,” it is government speech. When New Hampshire

emblazons its license plates with the slogan, “Live Free or

Die,” it is “the State’s ideological message” that is dis-

played. Wooley v. Maynard, 430 U.S. 705, 715 (1977)

(emphasis added).

“[W]hen the State is the speaker, it may make con-

tent-based choices.” Rosenberger v. Rector & Visitors of the

Univ. of Va., 515 U.S. 819, 833 (1995). The First Amend-

ment “permit[s] the government to regulate the content

of what is or is not expressed when it is the speaker or

when it enlists private entities to convey its own mes-

sage.” Id. When government speaks, individuals and

groups are free to disagree with what is said, or the way

it is said. And, they cannot be made to serve as couriers

of the government’s message. See Wooley, 430 U.S. at 717.

They also have a right to change the government’s mes-

sage, if they can, through the democratic process. Yet,

they have no right to use a lawsuit to compel the govern-

ment to change its message or to adopt a message it

abhors. The First Amendment confers no such license.

See, Rust v. Sullivan, 500 U.S. 173 (1991) (rejecting chal-

lenge to government regulation limiting expenditure of

public funds to family planning message favoring child-

birth over abortion). Thus, a State does not violate the

First Amendment by controlling its own speech. As the

discussion that follows will show, the erection of a high-

way sign honoring a volunteer organization that has

removed litter from the roadside is the speech of the

State, and is not subject to compulsion under the First

Amendment.

Adopt-A-Highway Signs Are The Speech Of The State.

When a State posts an adopt-a-highway sign honor-

ing an organization that has removed roadside litter -

such as the sign sought here by the Klan - the sign

contains the speech of the State, not the speech of the

organization. This is shown by the following six points:

First, the signs are purchased by the State, posted by

the State in the State right-of-way and remain the prop-

erty of the State. Ownership is key because “[t]he State,

no less than a private owner of property, has power to

preserve the property under its control for the use to

which it is lawfully dedicated.” Perry Educ. Ass’n v. Perry

Local Educators Ass'n, 460 U.S. 37, 46 (1983) (quotation

marks and citations omitted). Thus, as the owner of the

signs, the State has authority to decide whether they will

be designed to convey the messages of private citizens, or

its Own message.

Second, maintaining the highways is a function per-

formed from time out of mind by government as one of

its essential duties. Keeping the roadsides clean is part of

that function. Whether government performs that func-

tion by hiring and supervising employees, or by recruit-

ing and coordinating volunteers, makes no difference. It

remains a job for government. Missouri—and most States—

now carry out that job, in part, through adopt-a-highway

programs. The signs at issue here are part of that pro-

gram, and hence are part of an essential government

function.

Third, a State could conceivably compensate the

organizations that pick up litter by giving them a little

roadside billboard for whatever message they want to

post. Were it so, such billboards would not likely be

government speech. But that is not what the States do,

and it is certainly not what Missouri has done. Missouri

does not simply give billboard space to organizations that

pick up litter. Instead, Missouri has maintained control

over what will be posted on its signs, thus preserving the

messages as its own. This control is shown, for example,

by Missouri’s decision that its program is “not intended

as a means of providing a public forum for the partici-

pants to use in promoting name recognition or political

causes.” Mo. Cope Rec., tit. 7, § 10-14.030(1). The fact that

these regulations were not adopted until after this contro-

versy began is of little consequence. They merely state

formally what was already understood.

Fourth, if the Klan were to prevail in this case, the

sign that Missouri would be required to post, using its

typical sign format, would have the appearance of other

informational signs posted by Missouri on its highways.

It would say the following:

ADOPT-A-HWY

MI. LITTER CONTROL

KNIGHTS OF THE KU KLUX KLAN

REALM OF MISSOURI

See Bill Dedman, Klan Gets Wish, But Fight Over Project

Continues, New York Times, Dec. 4, 1999, at A10

(photograph of sign posted by Missouri in response to

court order). By its appearance, terms and manner of

erection, such a sign would cast the Missouri Adopt-

A-Highway Program as the speaker.

Fifth, even if such a sign were regarded as merely

giving information, it is a principle of First Amendment

jurisprudence that an individual cannot generally be

compelled to speak, even to convey facts he does not

wish to express. See generally, Pacific Gas & Elec. Co. v.

Public Utilities Comm'n, 475 U.S. 1, 11 (1986) (“[A]ll

speech inherently involves choices of what to say and

what to leave unsaid. .. . ”); McIntyre v. Ohio Elections

Comm'n, 514 U.S. 334 (1995) (upholding right of speakers

to make decisions about omissions or additions to content

of their own publications). The First Amendment is gen-

erally viewed as protecting citizens from the government

and not the other way around. Yet, surely free speech

principles do not impose upon the people of a State in

their collective capacity a compulsion to speak from

which they would be insulated as individuals.

Finally, such a sign conveys more than information,

or even thanks. It advertises and promotes the State’s

adopt-a-highway program, a message that belongs to the

State. It also implies a message of acceptance, a message

that the State regards the Klan as a valuable member of

society just like the Rotary Club or the Jaycees who have

adopted the next stretch of highway down the road.? No

2 Such a message of acceptance is different from—and more

fundamental than-—a message of endorsement. A State might

allow, for example, the Young Republicans to adopt one stretch

of highway and the Young Democrats the next, and post signs

recognizing each group without endorsing the views of either

one. But, by posting such signs, the State would nevertheless

10

State views the Klan that way. Yet, it is precisely this

message of official validation that the Klan seeks from

Missouri, and it is for this reason, too, that the speech at

issue is the speech of the State. The Court should grant

certiorari so as to ensure that neither Missouri nor the

other States are compelled to use their speech to legiti-

mize the Klan.

+

THE KLAN MAY BE DENIED A SIGN UNDER

PICKERING AND NTEU.

The Supreme Court has repeatedly recognized that

government “may impose restraints on the job-related

speech of public employees that would be plainly uncon-

stitutional if applied to the public at large.” United States

v. National Treasury Employees Union, 513 U.S. 454, 465

(1995) (“NTEU”). To determine whether a restriction on

citizen speech is justified, the Court balances “the inter-

ests of the [employees], as . . . citizen[s], in commenting

upon matters of public concern and the interest of the

[government], as an employer, in promoting the effi-

ciency of the public services.” Pickering v. Board of Educ.,

391 U.S. 563, 568 (1968). Based on the facts present here-

and that would likely be present in other cases involving

the Klan-the principles of Pickering and NTEU afford

Missouri and other States broad discretion to deny adopt-

a-highway signs to the Klan.

The job of maintaining the highways in general—and

the task of litter removal in particular—are essential

send the message that it views both groups as contributing

members of society and within the pale of legitimacy.

11

government functions. This is so not only because the

government has ownership or other control over the

highways, but also because the task of litter removal is

one for which the free market offers no incentives. States

often perform this function through employees; however,

recent years have seen the growth of adopt-a-highway

programs in which private organizations volunteer to

perform this task under the supervision of the State.

Litter removal employees are subject to the additional

restraints that governments may impose upon the job-

related speech of those it hires. So, too, volunteers who

perform this same function may be similarly restrained.

Accordingly, Missouri acted constitutionally when it

retained the right to reject an application if “in its opin-

ion, granting the request would jeopardize the program,

be counterproductive to its purpose or have undesirable

results such as increased litter, vandalism or sign theft.”

Mo. Cope Rec., tit. 7, § 10-14.030(2)(A).

“(S]urely a public employer may, consistently with

the First Amendment, prohibit its employees from being

‘rude to customers’... .” Waters v. Churchill, 511 U.S. 661,

673 (1994). Yet it is much more disruptive to have govern-

ment employees—or volunteers—engage in speech that

reveals them to be not simply boors, but racists with a

well-established reputation for violence. Thus, if

employees hired by the government were to wear Klan

garb or hoist a Klan sign while removing trash from the

roadside, there is little doubt that the State could prohibit

such job-related speech under Pickering and NTEU. The

same is true when the Klan seeks to engage in similar

expression while picking up litter as volunteers in a

government program. See, Texas v. Knights of the Ku Klux

12

Klan, 58 F.3d 1075, 1079 (Sth Cir. 1995) (“presence of Klan

members on the highway in Klan attire picking up trash

at the entrance to the project would invite strife”).

What the Klan here seeks—a permanent sign announcing

its presence—may be similarly restricted if a State reason-

ably concludes that the posting of such a sign is likely to

disrupt the efficient delivery of government services.

This Court “ha[s] given substantial weight to govern-

ment employers’ reasonable predictions of disruption,

even when the speech involved is on a matter of public

concern.” Waters, 511 U.S. at 673. It is not difficult to see

how such disruption would occur here. For example,

Klan signs are likely to become targets for litter hurled at

them by passers-by wishing to vent their distaste for the

Klan. See Bill Dedman, Klan Gets Wish, But Fight Over

Project Continues, New York Times, Dec. 4, 1999, at A10

(“State police officials say they fear that motorists would

go out of their way to litter on the Klan’s mile of I-55.”).

Other forms of vandalism and theft are also likely to

occur, as this case shows. See id. (describing unauthorized

removal of two Klan highway signs in Missouri). More-

over, the presence of the Klan on roadside cleanup forays

might well incite hostile action by other citizens, thereby

resulting in breach of the peace, hazardous driving condi-

tions and/or diversion of law enforcement resources to

prevent or respond to such incidents.? Participation by

3 This is not to say that groups with views repugnant to the

majority may be excluded from use of the streets as a traditional

public forum for parades or other demonstrations. But, such

right is always subject to reasonable time, place and manner

regulations; and parade permits are not at issue here. The

restraints that government may impose as an employer do not

evaporate when the job takes place on the public streets.

13

the Klan could also diminish the incentive of other

groups to participate and could lead ‘governments to

conclude that, on balance, the program is not worth pur-

suing. See Klan Kept Out of State Road Program, WaAsHING-

TON Post, Apr. 3, 1999, at B3 (describing decision of

Maryland’s Anne Arundel County to discontinue its

adopt-a-highway program because of the Klan).

Against these very real concerns about the efficiency

of public services must be weighed whatever interests the

Klan may have in commenting on matters of public con-

cern. See Pickering, 391 U.S. at 568. What message would

the Klan convey by a sign that starkly announces its

presence but says little more? Is the message that even an

avowedly racist group can be environmentally sensitive?

Such organizational self-promotion is not a matter of

public concern. Or is the message that the Klan is in town

and that racial minorities had best beware? Such a mes-

sage of intimidation may be a matter of public alarm, but

it falls outside the legitimate public discourse that Picker-

ing seeks to protect when it uses the phrase, “matters of

public concern.”

Even if the message conveyed by the work-related

highway sign were a “matter of public concern,” the -

denial of such a sign to the Klan would still leave open

ample alternative channels of communication. The Klan

could still deliver its message through all other lawful

means of communication, including any billboards it

might rent or lawfully post as a private group. The bal-

ancing test defined by Pickering and NTEU weighs in

favor of the State and against the Klan. Thus, even if the

14

Klan were entitled to participate in picking up litter (an

entitlement the Amici dispute‘), it still would have no

entitlement under the First Amendment to a State-pur-

chased sign announcing its presence. The Court should

hear this case in order to affirm the right of States to

apply to the job-related speech of volunteers the same

restrictions allowed with respect to the speech of

employees.

CONCLUSION

This case is not about the protections afforded by the

First Amendment to those who hold unpopular views.

This case is about the right of the people—acting through

their elected representatives-to engage in their own

speech as a body politic. And it is about the right of the

people to have a government whose essential operations

are not unduly disrupted by the work-related speech of

those whom it has recruited to carry out those operations.

4 The Amici take issue with the Eighth Circuit’s conclusion

that picking up litter is a form of speech. See Pet. App. 4a-5a, n.3.

To the extent that any speech element may be involved, it is at

most expressive conduct governed by the less demanding test

described by this Court in United States v. O’Brien, 391 U.S. 367

(1968). Of course, as a practical matter, recognizing the State’s

right to deny the Klan a sign is likely to blunt the Klan’s

enthusiasm for assisting government efforts to maintain public

highways.

ee

15

For the foregoing reasons, the Amici respectfully urge the

Court to grant the writ of certiorari sought by Missouri.

September 22, 2000

Respectfully submitted,

Commonwealth of Virginia,

Mark L. EARLEY

Attorney General of Virginia

WituamM H. Hurp

Solicitor General

Counsel of Record

AsHLeY L. TaAyYLor, JR.

Deputy Attorney General

A.tison P. LANDRY

VALERIE L. Myers

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

Additional Counsel Listed

On Inside Cover