KKK can't fund public radio, court upholds

Seattle Post Gazette/February 10, 2000
By Beth Miller

Kansas City, Mo. -- A federal appeals court has upheld a ruling allowing a public radio station to turn down the Ku Klux Klan as potential underwriters, the station reported Thursday.

The ruling confirmed that the station, KWMU-FM, an NPR affiliate located at the University of Missouri-St. Louis, has a right to control what it puts on the air and thus has a right to turn down a Ku Klux Klan request to underwrite programming, U.S. Court of Appeals for the Eighth Circuit in St. Louis ruled Feb. 17.

The station, licensed to the school's Board of Curators, also controls "the form and content of the announcements themselves," said the court panel.

The ruling upholds a decision in 1998 by U.S. Magistrate Judge Thomas Mummert, who said KWMU was free to turn down the Klan's offer to pay for airing 15-second announcements during "All Things Considered," a news program from National Public Radio, the St. Louis Post-Dispatch reported Monday.

The Knights of the Ku Klux Klan, Realm of Missouri, sued the curators and KWMU director and general manager Patricia Bennett after the offer was rejected, the newspaper reported.

Judge Theodore McMillian, writing for the three-judge panel, said the "central purpose" of underwriting is to acknowledge payments from sponsors.

"In other words, KWMU's underwriting announcements are federally mandated sponsorship identifications, in which UMSL 'speaks' by airing its acknowledgments of funds received from certain parties to pay for specific KWMU broadcasts," McMillian said. "Because KWMU must by law publicly advise its listeners as to the sources of funds 'accepted' for its broadcasts, UMSL's decision to accept or reject the funds as underwriters is itself a government decision to speak or remain silent."

Major companies and other large donors underwrite programs on public radio. Their names or promotional messages are broadcast before and after programs, the newspaper reported. Bennett said in a statement that UMSL officials are pleased with the ruling.

"We will stand firm to support the best interest of our listeners," she said.

Robert Herman, the Klan's lawyer, said he may ask the Supreme Court to hear the case. The 8th Circuit's ruling is the KKK's second court defeat on the issue. "When you represent people who have opinions that are vilified, . . . it's difficult to establish their rights," he said.

Herman said he believes McMillian ignored KWMU's admission that underwriting announcements are the speech of the underwriter and not the speech of the university.

In denying the Klan's application, Chancellor Blanche Touhill said in the appeal that accepting the underwriting funds from the Missouri KKK would "jeopardize future gifts from major African-American donors,... cause a drop in student enrollment, and counteract her efforts as the primary spokesperson for UMSL in creating and maintaining a level playing field in the community for African-Americans."

The KKK said in its suit that it is a social action and advocacy group. As an underwriter, it said it would have paid KWMU to air the group's slogan as "a White Christian organization, standing up for the rights of values of White Christian America since 1865."

The Klan complained that KWMU rejected the proposal in retaliation for the group's "social and political views," the appeal read. NPR in Washington joined the university curators in opposing the Klan's request, the newspaper reported.

The American Civil Liberties Union filed court briefs in support of what it contends are the Klan's free-speech rights. However, the court's most recent ruling held that KWMU's underwriting program was not a forum for speech and therefore did not implicate the First Amendment.

In addition, the court held that "KWMU's underwriting program was not a designated public forum and was, at best, a nonpublic forum in which rejection of the Missouri KKK as an underwriter was based on uncontradicted business and economic reasons and did not constitute an attempt to suppress the group's viewpoint."

The court also held that "Instead of being compelled to open their facilities 'on a non-selective basis to all persons wishing to talk about public issues,' public broadcasters enjoy the 'widest journalistic freedom' consistent with their statutory obligations to broadcast material serving the 'public interest, convenience and necessity.'"

"To require UMSL to accept program sponsorship form all sources would surely intrude upon the editorial discretion which Congress delegated," the court wrote in its decision.