Vermont v. Schenk 2015 1st Amendment KKK Flyers
In late October 2015, two women in Burlington found flyers advertising the Ku Klux Klan at their homes. One of the women was Mexican American; the other, African American. One woman found the flyer folded up and inserted into the mailbox by her front door, while the other woman found the flyer tucked into her front door. Neither woman saw this flyer at neighboring homes. The only other reported sighting was at a local copy store, where an employee reported finding the flyer in one of the store’s copy machines. Police viewed surveillance camera footage from the store and were able to identify defendant, William Schenk. The investigating detective contacted defendant, who admitted to distributing the flyers and explained that he was a “Kleagle,” or recruiter for the Ku Klux Klan. Defendant told the detective that he had distributed a total of thirty to forty flyers in neighborhoods that defendant described as “more white.” Defendant was charged with two counts of disorderly conduct in connection with the distribution of the recruitment flyers in the City of Burlington. For each count, the State charged that the penalty should have been enhanced under 13 V.S.A. 1455 because the crime was hate-motivated. Defendant appealed the trial court’s denial of his motion to dismiss the two disorderly conduct charges and the associated sentence enhancement. The Vermont Supreme Court held that the State failed to establish a prima facie case because defendant’s conduct conveyed neither the physical nor imminent threat of harm that is construed as the definition of “threatening behavior.” Accordingly, the Court did not reach defendant’s challenge to the application of the hate-motivated crime sentence enhancement. The Court reversed and granted defendant’s motion to dismiss.