Can KKK 'adopt a highway'? State of Georgia says no; appellate court considers the issue



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ATLANTA — A Georgia court heard arguments Thursday about whether the state violated a Ku Klux Klan group's constitutional rights by refusing its application to a highway cleanup program and whether a recent U.S. Supreme Court decision applies in the case.

The north Georgia KKK group applied to join the state's Adopt-A-Highway program in May 2012, hoping to clean up along part of Route 515 in the Appalachian Mountains. The state Department of Transportation, which runs the program, denied the application. The department said its program was aimed at "civic-minded organizations in good standing."

The American Civil Liberties Union Foundation sued on behalf of the KKK group in September 2012, arguing that the state violated the group's right to free speech.

Fulton County Superior Court Judge Shawn Ellen LaGrua agreed and ruled in the group's favor in November, saying the KKK's group's application was treated differently than others and that "viewpoint-based discrimination" is not allowed under the Georgia Constitution.

The state appealed, and the Georgia Court of Appeals heard arguments in the case Thursday. The judges made it clear that they are very interested in hearing arguments from both sides as to whether a U.S. Supreme Court decision in a Texas case issued last month applies in this case.

The U.S. Supreme Court upheld Texas' refusal to issue a specialty license plate sought by the Sons of Confederate Veterans bearing the group's logo, which includes the Confederate battle flag. The 5-4 ruling said Texas could limit the content of license plates because they are state property.

Senior assistant attorney general Julie Jacobs said the KKK's claims are barred by the principle of sovereign immunity, which protects government entities from being sued without their consent.

Alan Begner, who represents the KKK, argued the state is not protected by sovereign immunity from the constitutional challenges raised in this case.

"All citizens must have the right to challenge constitutional violations or we'd have no Constitution at all," he said.

But even if sovereign immunity doesn't apply, the KKK's arguments are still unsound because the Adopt-A-Highway signs constitute government speech and not constitutionally protected free speech, the state's lawyers argued.

The state of Georgia controls the message and design of the Adopt-A-Highway signs, and roadway signs are generally associated with the state in the public's mind, which makes it government speech, assistant attorney general Brittany Bolton argued.

In a briefing in the case before the Supreme Court's decision came down, the KKK group's lawyers said specialty license plates are the speech "most analogous" to the Adopt-A-Highway signs. Many courts have ruled the plates are a mix of government and individual speech, the group's lawyers argued.

Maya Dillard Smith, executive director of the ACLU in Georgia, told reporters after the hearing that, unlike license plates which are used for safety and regulation, participation in the Adopt-A-Highway is constitutionally protected free speech.

The implications of denying that speech go far beyond whether the KKK can join the cleanup program, she said, adding that it amounts to the government singling out one group for scrutiny.

Begner argued before the judges that the brochure for the Adopt-A-Highway program proves that the act of joining is an expression of speech — it says belonging sends a message to the public that the participant is environmentally conscious.

Appeals Court Judge Anne Elizabeth Barnes told Begner the court wants to hear more of his arguments on the application of the U.S. Supreme Court decision in this case and asked him to submit a supplemental brief.

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