A divided Vermont Supreme Court on Friday overturned the disorderly conduct conviction of a Ku Klux Klan member who left recruitment flyers at the homes of two minority women in Burlington in 2015.
In a 3-2 opinion, justices ruled that William Schenk’s action did not convey an “imminent threat of harm” as required by the law to support the charge.
Schenk, 21 at the time, told investigators that he was on a KKK recruiting mission and distributed around 50 flyers that read “Join the Klan and save our land.” But authorities said he left flyers for just two people: One of the women is African American, and the other identified herself as Mexican, according to court documents.
“The flyer is a recruitment solicitation — its overt message is to join the Ku Klux Klan,” former associate justice John Dooley wrote. “It contains no explicit statement of threat. To the extent that it conveys a message of personal threat to the recipient, it is that the Klan will recruit members and inflict harm in the future.”
While Dooley retired at the end of March 2017 — after Schenk’s appeal had been filed and oral arguments had been made — he stayed on the case.
In April 2016, Schenk pleaded no contest to two misdemeanor charges of disorderly conduct and was sentenced to four months in prison. He could not be reached for comment Friday.
The long-awaited decision caused a rare split on the high court, which tends to have fewer close decisions in high-profile cases than its federal counterpart.
Dooley was joined in the majority opinion by Associate Justices Marilyn Skoglund and Harold Eaton. Chief Justice Paul Reiber and Associate Justice Beth Robinson dissented.
In the dissent, Robinson wrote that the majority’s interpretation of threatening behavior is “excessively narrow,” though she acknowledged the case was “difficult and close.”
“The distribution of literature extolling the Ku Klux Klan when delivered only to two targeted individuals who are racial or ethnic minorities, is especially threatening when delivered inside the [perimeter] of their own homes,” Robinson wrote.
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If it was indeed a “difficult and close” case as the dissent wrote, it’s hard to see how they didn’t err on the side of the First Amendment. Ties go to the constitution. Every reasonable person knows what this guy did was an awful thing, but it clearly did not meet the “imminent threat of harm” threshold in the state’s law. “Imminent” is a commonly used term in the law, and a flyer with a message like this doesn’t come close.
The author seems to implicitly suggest that Judge Dooley’s vote is illegitimate because of his retirement . Judges should decide on cases that have been argued before them . It’s not only correct, it is admirable .
Too bad the old codger betrayed his own inability to reason properly.
“It contains no explicit statement of threat. To the extent that it conveys a message of personal threat to the recipient, it is that the Klan will recruit members and inflict harm in the future.”
Threats by their very nature come before danger. It doesn’t matter how many steps there are between the threat and the danger. Hide behind the first amendment all you want, you care more about upholding white supremacy than freedom.