Frank Ancona, imperial wizard of the Traditionalist American Knights of the Ku Klux Klan, filed a lawsuit seeking an emergency order to overrule the Department of Natural Resources’ rejection of his application to rent a pavilion at the Fort Davidson Historic Site in southeast Missouri.The ACLU, which is representing the Klan, says this is a clear-cut case of viewpoint discrimination. The "historical inaccuracies" argument seems like a sham. In addition, it appears the DNR sought to classify the proposed gathering a "special event," thus activating the $2 million liability insurance requirement. The Klan claims the event is a barbecue, not a public rally. Liability insurance requirements, which are relatively common, can make it difficult to have a demonstration. Depending on the local market, insurance policies for public demonstrations can be difficult to procure and somewhat expensive. In many localities, this is merely one of the numerous requirements groups must meet in order to have a public gathering.
U.S. District Judge Rodney Sippel in St. Louis issued a temporary restraining order last week against the DNR decision.
But Sippel said the group had to follow DNR rules, one of which requires $2 million in liability insurance for special events, according to DNR spokesman Judd Slivka.
The Klan group wasn’t able to come up with the required insurance by the date of the event, scheduled for April 17, Ancona said. Instead, the group held its picnic on private property about 40 miles away, he said.
Ancona said his group intends to seek another permit for a similar gathering at the site.
When the DNR originally denied the Klan group’s permit request on March 23, the DNR cited the group’s desire to have a Confederate flag flying at the historic site and to present information claiming the Confederate flag had been removed from the state historic site.
The DNR said in a letter to the ACLU that the Confederate battle flag was never flown at the site.
The DNR also said the flag depicted on the Klan group’s flier was an Army of Northern Virginia unit flag.
“These and other historical inaccuracies render the proposed public event inconsistent with the historical mission and purpose of the Fort Davidson State Historic Site,” the DNR letter said.
Should the case proceed, I wonder if the DNR will try to argue that the pavilion expresses a governmental message of some sort. In the recent Summum case, the Supreme Court concluded that municipal parks often convey government messages, thus entitling local governments to selectively accept monuments for permanent placement. The DNR seems to be arguing that it has a similar power to protect the pavilion's "message."