Klan Recruitment In Vermont
The Vermont Supreme Court reversed a criminal conviction
Defendant William Schenk was charged with two counts of disorderly conduct, in violation of 13 V.S.A. § 1026(a)(1), in connection with the distribution of Ku Klux Klan recruitment flyers in the City of Burlington. For each count, the State charged that the penalty should be enhanced under 13 V.S.A. § 1455 because the crime was hate-motivated. Defendant appeals the trial court’s denial of his motion to dismiss the two disorderly conduct charges and the associated sentence enhancement. We hold that the State failed to establish a prima facie case because defendant’s conduct conveyed neither the physical nor imminent threat of harm that we construe the definition of “threatening behavior” to require. Accordingly, we do not reach defendant’s challenge to the application of the hate-motivated crime sentence enhancement. We reverse and grant defendant’s motion to dismiss.
The majority
even if the statute could be violated by pure speech, the charged conduct would also need to convey the imminent threat of harm, which the conduct in this case does not. The flyer is a recruitment solicitation—its overt message is to join the Ku Klux Klan. It contains no explicit statement of threat. To the extent it conveys a message of personal threat to the recipient, it is that the Klan will recruit members and inflict harm in the future. The flyer itself is not “immediately likely to produce” force and harm…
We need not reach whether defendant’s conduct included a true threat. Even if defendant’s speech contained a true threat, it would not violate the statute under which defendant was charged as we have construed that statute here and as explained above. In reaching this conclusion, we do recognize that any communication from the Ku Klux Klan complete with symbols of the Klan, particularly the burning cross, would raise concern and fear in a reasonable person who is a member of an ethnic or racial minority. We are not ruling today whether the Legislature can make criminal such action or has done so in a different statute. Our ruling today is only that defendant’s conduct does not violate the specific statute under which he was charged.
Justice Robinson dissents
Although I am sympathetic to the goal of narrowing a criminal statute to avoid constitutional infirmity, I believe the majority’s construction of the term “threatening behavior” is excessively narrow because it precludes prosecution for a serious expression of an intent to commit acts of unlawful violence to a particular individual or group of individuals uttered in public with an intent to cause public inconvenience or annoyance if that threat is unaccompanied by a physical gesture. I would construe the definition of “threatening behavior” in the statute to reach a communication of an intent to inflict physical or other harm— even that which takes the form of threatening words unaccompanied by a physical motion beyond the act of speaking—to the extent that in its overall context such threatening behavior, including its expressive component, is not constitutionally protected. Our standard of review at this stage of the proceedings is significant. The question for us on appeal is not how this Court construes the evidence but whether a reasonable jury could find defendant guilty if it viewed the record evidence, and the inferences from that evidence, in the light most favorable to the State. Given the combination of three critical factors—that the communications in this case were targeted exclusively at two minority residents in a predominantly white, nonhispanic neighborhood, they invoked powerful symbols of violence against racial and ethnic minorities, and they were placed inside or next to the screen doors of two targeted individuals’ homes—a reasonable and properly instructed jury could conclude that the threats in this case were not constitutionally protected. Accordingly, I would affirm.
Chief Justice Reiber joined the dissent.
Burlington Free Press reported on the decision. (Mike Frisch)