- Associated Press - Tuesday, October 25, 2016

BURLINGTON, Vt. (AP) - A white man charged with distributing Ku Klux Klan recruitment fliers to two minority women is protected by the First Amendment, the American Civil Liberties Union of Vermont said in a filing with the state Supreme Court.

William Schenk earlier this year pleaded no contest to a disorderly conduct charge that he distributed KKK recruitment fliers to a black woman and a Hispanic woman in Burlington last October. He served a 120-day sentence.

Schenk has appealed his case to the state Supreme Court. He argued his speech was protected by the Constitution because he was trying to recruit new members.

ACLU attorney Jay Diaz argued the state is attempting to criminalize political speech and needs to prove the speech is threatening.

“Although finding an impersonal political message may place a reasonable person in fear, the protected conduct involved in delivering that message to another’s door cannot be criminalized without evidence that it was delivered with intent to place the recipient in fear of bodily harm,” Diaz wrote.

Vermont ACLU Executive Director James Lyall said the organization doesn’t support the KKK and has worked for decades to promote racial justice.

But he said criminally convicting Schenk of criminal wrongdoing is a step in the wrong direction.

Chittenden County State’s Attorney T.J. Donovan, whose office prosecuted the case, said it would have been protected speech if Schenk had been handing out fliers on the street, but because he left them for women of color there was an implicit threat in the leaflets.

“In the city of Burlington, the only people that received these fliers on these dates and times were these two women, and so the state’s position was that it was directed and specifically intended toward these two women,” he said.

Donovan said the Supreme Court’s decision will help Vermont balance the competing claims.

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