[A] North Carolina man accused of targeting two women of color with Ku Klux Klan recruitment fliers has had his convictions for disorderly conduct tossed out by the Vermont Supreme Court.
In a 3-2 decision issued Friday, a majority of the state’s high court ruled in favor of William Schenk, who was 21 at the time of his arrest on the charges three years ago.
Police say he posted fliers depicting a hooded Klan member on horseback holding a burning cross, with the words “Join the Klan, Save our Land” — at two women’s apartments in Burlington’s South End neighborhood in October 2015.
“The flyer (sic) is a recruitment solicitation — its overt message is to join the Ku Klux Klan. It contains no explicit statement of threat,” the majority opinion from the high court read.
“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 decision stated. “The flyer itself is not ‘immediately likely to produce’ force and harm.”
Schenk, who was living and working in Burlington, told police he delivered as many as 50 of the fliers in the Burlington neighborhood.
However, according to police, the two women of color, one identified in court records as African-American and the other as Mexican, are the only people known to have received them.
Schenk pleaded no contest in April 2016 to the two misdemeanor counts of disorderly conduct enhanced by a hate crime penalty. He was sentenced to four months in jail on each charge, to be served concurrently.
In pleading no contest, Schenk had to acknowledge, but not agree to, the facts prosecutors put forward in the case; he also acknowledged that they could be proven beyond a reasonable doubt. The facts included that he acted recklessly and threateningly toward the women and that he was maliciously motivated by their race.
His plea was conditioned on reserving his right to appeal to the Vermont Supreme Court.
The three justices ruling in Schenk’s favor were Harold Eaton, Marilyn Skoglund and John Dooley, who has since hearing arguments in the case in 2017 retired from the court.
Chief Justice Paul Reiber and Justice Beth Robinson joined in a dissenting opinion.
According to the dissenting opinion, taking the evidence “in the light most favorable” to the prosecution, a reasonable jury could conclude that Schenk’s communications amounted to “threatening behavior.”
“The singling out of these particular minority victims for receipt of the flyers,” the dissenting opinion read, “the history of the Ku Klux Klan and the imagery of hooded Klansmen and burning crosses, and the anonymous and intrusive placement of the flyers in the doors of the victims’ homes are three critical factors that, in combination, support this conclusion.”
Vermont Defender General Matthew Valerio, whose office represented Schenk, said Friday that while the “activity that went on at the time was distasteful,” it wasn’t a crime.
“The Supreme Court never even had to reach the idea of whether or not it was First Amendment activity,” Valerio said. “The fact that what he did didn’t add up to anything that was threatening is what gave rise to the Supreme Court saying that there wasn’t probable cause” for the charges.
Vermont Attorney General TJ Donovan, who was the Chittenden County state’s attorney at the time of Schenk’s prosecution, said Friday that he was disappointed by the high court’s ruling.
“My opinion was that the physical delivery of the fliers, the pamphlets, was the act and implicit in that act was the threat,” he said.
“If you asked anybody who is a person of color, they received a flier from the KKK directed at them, that is an implicit threat because the KKK is a hate group directed toward people of color,” Donovan said. “That’s why we filed the charge, that’s why I’m disappointed, but at end of the day I respect the Supreme Court’s authority and their decision.”
The Vermont chapter of the American Civil Liberties Union filed a “friend of the court brief” in the appeal of the case before the Supreme Court. The ACLU argued that prosecutors didn’t produce evidence that Schenk intended the leaflets as a “true threat,” and that without that evidence, political leafletting is protected speech.
James Lyall, the ACLU of Vermont’s executive director, issued a statement Friday saying that while Schenk’s conduct was “reprehensible and fully deserving of the public condemnation it received,” he supported the decision.
“The Court’s ruling does not directly address the difficult First Amendment issues in this case, but rather holds that the facts of the case did not support a charge of disorderly conduct. We agree,” Lyall added. “The Court rightly acknowledges that Mr. Schenk’s delivery of racist leaflets caused their recipients real fear. That speech, however, cannot be prosecuted as disorderly conduct.”
The ruling, he said, leaves unresolved whether similar conduct could be prosecuted in the future, including under a criminal threatening statute that was enacted into law in 2016, after Schenk’s arrest.
