Court: KWMU can reject Klan underwriting
Originally published in Current, Dec. 21, 1998
By Jacqueline Conciatore
A U.S. District Court judge ruled Dec. 10 [1998] that state-owned St. Louis radio station KWMU is not required to accept underwriting support from the Ku Klux Klan.
The head of the Missouri KKK chapter, Michael Cuffley, claimed KWMU and its licensee, the University of Missouri, St. Louis, improperly refused his request to underwrite the station's broadcast of All Things Considered, violating his constitutional rights. Cuffley wanted an on-air spot that would credit "the Knights of the Ku Klux Klan, a white Christian organization, standing up for rights and values of white Christian America since 1865."
KWMU is subject to free-speech laws because it's licensed to a state school.
Cuffley's attorney, Robert Herman, says he'll appeal the decision. "Every party ... and the judge understood that this case was not going to be resolved at the district court level," he said.
Judge Thomas Mummert of the Eastern District Court of Missouri rejected Herman's arguments that KWMU discriminated against the Klan because of the latter's "social and political views." The evidence was undisputed that university Chancellor Blanche Touhill rejected the Klan gift for business and financial reasons, he said. Touhill had testified that the school would lose at least $5 million in student enrollments and community donations if KWMU took Klan underwriting. One of the university's major donors, who has given $8.9 million to date, is an African-American who had "suffered indignation in World War II because of his race" and "vowed to assist his race in overcoming this prejudice if he achieved financial success," she said.
John Crigler, an attorney with Haley, Bader and Potts in Arlington, Va., says Mummert's decision is a good one for public broadcasters. "The important thing this case recognizes is that institutional, state-owned licensees have economic interests they have to protect," he said. "It's reasonable to reject underwriting announcements" if stations believe the gifts could harm them, he said.
It helped the university's case that KWMU had a written underwriting policy to submit into evidence, he said.
The judge didn't buy Herman's arguments that KWMU had to accept the Klan gift because its underwriting program is a "designated public forum." Such forums are open to all speakers within a given class; if the government agent excludes any speaker in that class, its action is subject to strict scrutiny. The judge cited the Supreme Court's Arkansas ETV decision in May, which said that "public broadcasting as a general matter does not lend itself to scrutiny under forum doctrine," with the narrow exception of candidate debates.
With its message that public broadcasting signals "don't have to be access channels," Mummert's ruling reads like a companion piece to the Arkansas case, says Crigler.
Mummert went even farther, ruling that if KWMU's underwriting program were subject to scrutiny, it wouldn't ultimately qualify as a designated forum. KWMU doesn't intend its underwriting to be open to all parties and all content, since it reviews and edits announcements and imposes other restrictions, including those from the FCC, Mummert noted.
General Manager Patty Bennett expressed relief at the decision. Had the KKK won, "there would be a loss of support from individuals and businesses for public broadcasting throughout the country," she told the St. Louis Post-Dispatch.
Cuffley brought the suit in October 1997. He wants to underwrite ATC because he enjoys the program and hopes to attract a more educated listener to the KKK, he testified.
He has also sued the state for rejecting the Klan's application to adopt a highway.
He testified that his organization does not advocate violence but does participate in "cross lightings." He has participated in at least 100, he said.
Earlier news: Klan files suit, 1997.
Web page created Dec. 20, 1998
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