State of Tex. v. Knights of Ku Klux Klan

punitive requirement that satisfied Texas actu- absent OF TEXAS he awarded STATE damages will through Transportation, it is ful- presently think of damages. We al Commission, exemplary Transportation dam- the verdict filled since compensatory Plaintiffs-Appellees, conjunction with ages is proceeds. policy including the damages added). In contrast (emphasis at 836 Id. KLAN, KU KLUX OF the KNIGHTS paid the Wetherbee, in our case insurer individually and as a judgment, and the default amount of full Knights the Ku representative of actual any prove recoverable failed to Greer Lowe, indi- D. Michael Klux Klan and explained above. reasons damages, for the representative vidually damages, we believe actual of zero In a case Klan, Defen- Knights Klux the Ku any him law does not allow Mississippi that dants-Appellants. damages. punitive No. 94-40425. awarded, attorney’s fees As for appears to in Mississippi prevailing view Appeals, Court United States recoverable attorney’s fees are not that be Fifth Circuit. damages,3 al punitive an award absent July attorney’s indicate though some eases or extra-contractual as can be awarded fees punitive damages even where

consequential warranted, insurer if the

damages are not any arguable basis.4 without a claim

denied contrary, howev authority to the

Finding no Mississippi law

er, persuaded are we attorney’s recovery fees

does not allow actual recovers neither the insured damages. punitive

nor RENDERED. AND

REVERSED cir- Co., where the reason even arguable an See, without 631 So.2d e.g., Ins. Miller v. Allstate damages punitive ("In (Miss.1994) such that of a show are not cumstances absence wrong entitling entirely an the Movant ing gross proper.... willful is foreseeable [I]t are Mississippi damages, the punitive pay award a valid claim to an failure insurer awarding approved of has never Court employees should negligence of its through the litigant.”); Cen attorneys the successful fees to one entitled result cause some adverse (Miss. Butler, So.2d tral Bank v. and ex- payment.... inconvenience Additional 1987) (“[Tlhis in the absence has held that ex- should be and the pense, attorneys fees like authority, statutory provisions or contractual of attorneys' oversight correct- pected to have the in an effort damages awarded as not be fees party injured just that the than ed. It is no more prop damages also punitive in a case unless injuries.”); Andrew compensated these be Steele, er.”); Casualty Sur. Co. Aetna Williams, 566 So.2d Co.v. Ins. Jackson Life (Miss.1979) ("Attorney's fees are So.2d pre- ("Conceivably, upon (Miss.1990) n. damages unless as an element of not recoverable consequential or proof, sentation of sufficient damages punitive justified.”). infliction {e.g., attor- damages extra-contractual losses) costs, fees, and other economic ney (“Some justices Veasley, at 295 610 So.2d 4. See involving a lack cases be awarded suggested extra-contrac- on this court have notwithstanding that reasonably arguable cases involv- basis— damages ought awarded in tual ing damages.”). punitive not liable for the insurer pay contract on an insurance a failure to December, 1993,

adopted miles. Klan, through Knights of Ku Klux Mi- Dragon and chael Lowe as Grand the Pro- filed an with highway on gram adopt a stretch of state Highway in or near Highway 105 or Vidor, directly in Highway runs Texas. provides primary and entrance front of public housing pro- federally subsidized pro- ject Highway in 12 is near Vidor. ject. housing project in Vidor is un- desegrega- continuing requiring

der a order Pierce, Young v. project. tion of the (E.D.Tex.1988). summary F.Supp. 986 deseg- that efforts to judgment record shows housing project have encountered regate the Galveston, TX, Griffin, ap- for Anthony P. opposition from the Klan. Residents strong pellants. housing project and Vidor offi- Schweitzer, threats reported have numerous Flores, cials M. Sharon Norberto Gen., by the Klan. Black resi- Morales, acts of Gen., Atty. intimidation Attys. Dan Asst. who moved into received Austin, TX, dents appellees. persons tried to harassing phone calls Millett, Stern, A. Asst B. Patricia Mark mayor apartment. The of into break their Div., Staff, Dept, Attys., Appellate Civ. receiving warning reported Vidor Justice, DC, Curiae. Washington, Amicus hang effigy.” in “black her Klan intended Klan, proceeding against the In a state court de- that a Klan member a witness testified “[tjhere’s rally going to be at a clared M. and EMILIO REAVLEY Before As a result of of Vidor.” blood the streets *, GARZA, Judges, and Circuit PRADO desegrega- attempts by the Klan to deter Judge. District a Texas district court tion injunction necessary to enter an deemed REAVLEY, Judge: Circuit Klan from prohibiting the against the Klan Klan, Klux Knights residents, demonstrating of the Ku intimidating from (collective- D. Lowe impeding and Michael project entrance and at the “Klan”) summary judgment appeal a ly Hale egress or access to Klan, of the State favor against them No. issued Ku Klux 93- Knights Texas Tex., (261st Dist.Ct., the Texas County, Travis “State”), (collectively de- 1994). Transportation Feb. obligation legal claring the State has no 18, 1994, taking any January before On participate application grant participate application to on the Klan’s action (the Program Adopt-a-Highway in the Texas filed suit federal affirm. “Program”). We declaratory judgment seeking a district court application rejection of the Klan’s BACKGROUND highway near adopt two miles the First would not violate orga- or Program, a business Through the granted The district Amendment. highway and adopts miles of two nization State, and in favor of the summary judgment signs posts The State litter there. collects appeals. adopter at both naming the ends * Texas, designation. sitting by Judge the Western District District property. school than the

DISCUSSION rather school 44, 103 954; U.S. at see also Lehman We hold the State will not violate the City Heights, Shaker by rejecting First the Elan’s (1974) portion (defining advertising spaces forum as housing Texas. buses). Assuming that the Elan’s Program expres- would constitute Similarly, we define the forum this protected by sive conduct First Amend- Program case as the rather than the ment,1 ais forum and highways. general The Elan does not seek the Elan’s exclusion from the public highways access to the viewpoint-neutral. reasonable and purposes or for purposes. fitter retrieval Rather, by participation in Nonpublic A. Forum put Elan wishes to its high members on the govern The extent to which the way auspices get under the of the State and pur ment limit access to a forum for sign particular its name on a at a location. poses engaging speech depends on the nature of the relevant forum. Cornelius Program nonpublie The is a forum. The Legal Fund, NAACP and Educ. forum, Program public Defense is not a traditional as Inc., 788, 800, 3439, 3448, 473 U.S. 105 S.Ct. public parks. are streets and Nor has government The designated by been public the State as a provide must a compelling governmental in forum. There is no indication that the State public terest to restrict access to a traditional open up Program intended to for designated by gov forum or to a forum Cornelius, 802, discourse. See public. government ernment as Id. The 105 S.Ct. at 3449. forum, restrict access to a Program The though, does not long so as have as its the restrictions are rea “ purpose provision of a expres forum for sonable and are ‘not an suppress effort to activity. Soc’y sive See expression merely International op because officials ” —Lee, U.S. -, Krishna pose Consciousness v. speaker’s (quoting view.’ Id. Per -, 2701, 2707, 120 ry L.Ed.2d 541 Perry Educ. Ass’n v. Local Educators’ (1992); Cornelius, Ass’n, S.Ct. U.S. (1983)). purpose at 3450. The stated of the is to opportunity support allow citizens an forum, pinpointing the relevant we In Transportation’s efforts to sought by must focus on the “access control and reduce fitter. Tex.Admin.Code speaker.” employ ap Id. We a “tailored 43, § Any opportunity tit. 25.801. proach” determining what constitutes the provided by peripheral government forum within the confines of purpose. that central government The does Cornelius, property. government Id. In merely by permit create forum groups partic wished to exclude certain from Cornelius, ting some ipating in fundraising a charitable drive con 3449; at Perry see also Educ. workplace. ducted the federal The Su Ass’n, 103 S.Ct. at 956. preme Court defined the forum as the fund- raising campaign government rather than the The State restricts and controls the size buildings which housed federal workers. Id. and signs posted content of the at the ends of adopted the Court defined the miles. See Tex.Admin.Code tit. 25.807(5). system public 43, forum as the § internal mail Only the adopt- name of the 1. The Program. district court found that the Klan wishes to the Klan's conduct would posted engage have its name and to in trash serve to threaten and intimidate current and highway project potential collection on the project. near the Vidor future residents of the Vidor presence in order to send of its and We pro its need not decide whether such disapproval desegregation of the tected the First Amendment. See United engage (8th Klan contends it would expressive States v. F.3d Cir. 1994). through participation conduct in the desegre- is under an order no Texas which placed sign, group is ing engaged in such virile gate. The Klan has possible. exchange of ideas is discourse desegregation opposition may not not state officials who are Persons enjoin fit to court has seen state authoriza signs without state own erect their 6674v-7(b) blocking access § Klan Tex.Rev.Civ.Stat.Ann. tion. pro- intimidating residents. (West limitations on Such Supp.1995). indicating summary judgment evidence vided speech are indicative content of quantity and project would feel nonpublic forum. to maintain of an intent if the Klan were allowed 800, 804, 105 fear and frustration See project. The 3447, 3450. posting sign outside addition, partic- has made likely name would announcing the Klan’s only to cer- Program available ipation anxiety. great residents a deal cause Vidor tit. Tex.Admin.Code tain entities. high- of Klan members presence polit- example, individuals § For 25.803. up trash at the picking attire Klan subject exclusion. organizations ical invite strife project would entrance to the 25.803, 43, §§ tit. Tex.Admin.Code or- compliance with court and interfere with 25.807(4). approved must applications AH ders. Transportation. by the State supported determi- limitations have Similar context, the State could reason- this Given is not a forum. program a nations that adoption of a ably that the Klan’s believe Cornelius, that Supreme Court noted the project would highway outside the section of policy had been government’s consistent the further intimidation of the residents result in fundraising cam- participation to limit un- housing project and would create The voluntary agencies. certain paign to district court found conflict.2 The reasonable practice was inconsis- that this Court noted reasonably that believe and the could State public forum. intent to create tent with an by as a used the Klan the would be at 3450. 473 U.S. court subterfuge, particularly after the state held that Supreme Court the re- in Vidor enjoined Klan activities various to create a shown no intent the had State to allowing the Klan lating to the it allowed access forum by the discourage desegregation of system to those mail internal accomplish. school’s openly not that it could means individual permission from the received who may that The conclude State principal. 460 U.S. building substantially Program would Klan in the the at 956. ability encourage com- to impede the State’s injunction requiring

pliance the federal with Restriction B. Reasonable desegregation. grant the may refuse to The State Program is to encour- purpose of the high to a section application Klan’s highways of Texas. age trash removal housing project as a the Vidor near not meant to be used Program was nonpub speech on restriction launching program of intimi- platform for govern The reasonableness lic forum. dation, inciting tension and a means of nor as nonpublic of access to a ment restriction the possibly violence. Use purpose light of “in the forum is assessed requiring order federal thwart a surrounding circum and all the of the forum with certainly not consistent desegregation is Cornelius, stances.” act would reason- purposes. The State its 3453. S.Ct. at Program use of the ably preventing partic- by prohibiting purposes such adopt a portion

The Klan wishes Klan. requested ipation highway near shown, wait until havoc wreaked declaratory judg- State "need in this It not been has Cornelius, action, neces- U.S. at or strife would that violence access ..." ment sarily restrict adopted a section occur if 105 S.Ct. at However, housing project. highway near the then, may reasonably reasonably, seeking The State also con would act protect privacy adoption by residential of the resi- clude that the Klan of a recog- dents. The has also section of outside of Vidor would that, nized when a forum in- public high frustrate the use of the State’s volved, government may speech limit ways. summary judgment sup evidence protect against imposition upon captive its ports finding audience, even outside of the home. Lehman family their would be reluctant to members City Heights, Shaker Klan, highways adopted by particu use 2718. The State would not act un- larly present gathering if the Klan trash. was reasonably disallowing the Klan’s must We consider the function and nature of imposed upon captive to be audience government property, the relevant in addi residents of the Vidor purpose tion to the of the relevant forum property, evaluating within that the limits project might Some residents willing imposed recipients message. be be on Klan’s 485, 108 800-03, Frisby, 487 U.S. at S.Ct. at 2503. 105 S.Ct. at 3448-49. Cf. required is not to show highways purpose The Texas exist for the speech its restriction would limit facilitating movement around the state. The speech only captive unwilling recip as to unreasonably pro State does not act when it message. ients of the Klan’s The State faces hibits which would interfere with that requirement no such its restraint on function. “narrowly tailored.” United reasonably reject The State also Kokinda, States v. protect privacy 3124, 111 pre- residents in their homes and to The State’s restriction on must be vent becoming captive residents from reasonable, but it need not be the “most portions audiences. One of highway the 808, reasonable.” 105 adopt provides which the Klan seeks to the S.Ct. at 3452. entry means of or exit for the Vidor provided justifica- adequate The State has public housing project. If the Klan’s name tion for the exclusion of Klan the from the placed sign entry were aon near the to the Program under the circumstances of this project, project the residents of the would be case. The State’s refusal to allow the Klan message forced to receive the of the Klan’s highway section of presence they each time wished to leave or housing project in Texas is reasonable return to their homes the for the above-stated reasons. Schultz, Frisby the Court Viewpoint C. Neutral recognized privacy significant residential governmental justifying interest limitations existence of speech grounds preventing nonpublic access to a the context of a justify forum will not 474, 483-87, 2495, State’s restriction of forum. 487 U.S. speech actually where the restriction is “an 2502-03, Frisby, suppress expression merely effort to because emphasized the the at oppose speaker’s officials view.” issue was directed at individual residences so Ass’n, Perry Educ. that persons captive became audiences inside government at 955. is not Id., their own homes. at U.S. required neutrality to act with content case, at S.Ct. 2502. In this Klan wishes limiting access to a forum and project to direct at the as a whole. make “distinctions in access on the basis Although residents of the could avoid Id., speaker identity.” ... U.S. message homes, they inside their own rejection 103 S.Ct. at 957. The State’s would not be able to leave or enter the constitutes encountering without sign. the Klan’s viewpoint-neutral restriction on imposition of the Klan’s would privacy affect the of the residents in the There is no indication in the record they attempt prevent live. The State that the State’s PRADO, Judge, concurring: District outside of adopting a section by actually motivated a desire to is by ma- I concur in the result reached id., 460 viewpoint. Elan’s suppress the separately I I jority but write because be- n. n. 103 S.Ct. at 957 9. The at 49 U.S. methodology appropriate. is lieve different only one wishes to exclude fact that Although agree Adopt-A-High- I that the viewpoint does not alone group with a certain forum, non-public program is a and that viewpoint-based. See make the exclusion — excluding the the State’s offered reasons for Ctr., Inc., Health Madsen Women’s (the Enights Eu Elux Elan -, -, S.Ct. U.S. “Elan”) program (all (1994) enjoined persons viewpoint-neutral, I do that the abortion); not find against Perry were demonstrators viewpoint-neutral, reason- Ass’n, traditional test at 957 Educ. (one applicable analyzing unions excluded from able restrictions of two teacher’s system). mail The State’s desire to regulatory internal scheme lacks restrictions.1 Elan in the prevent participation of the Nevertheless, I find that the state opinions Program is not due constitutionally the Elan from its exclude Elan, results from the foreseeable but rather program the facts of this case. Con- under Elan, impact Program participation ceding Elan has a First Elan, upon the given past conduct of the right participate I find privacy peace and right express itself in this that the Elan’s highways. and use of State’s Cf. non-public forum is surmounted at 957 ensuring compelling State’s interests com- (no gov- viewpoint discrimination where the injunctions pliance with the state and federal group based on its status ernment excludes affecting the Vidor interests which — views); Madsen, rather than its majority refers to as “reasonable restric- (no -, viewpoint discrim- 114 S.Ct. at 2524 tions.” ination where limitations viewpoints based on persons with similar

past persons). conduct of those

CONCLUSION case, specific of this we con-

On the facts will not violate the First clude SCHILLING, Gordon by refusing the Elan to to allow Plaintiff-Appellant, adopt a section of outside housing project in The State’s Texas. Project application to the denial of the Elan’s L. Robert L. Edward WHITE and is a effort to avoid strife and reasonable Defendants-Appellees. Massie, prospective intimidation current and resi- No. 94-3097. public housing project dents the Vidor compliance deseg- promote with a federal Appeals, United States Court regation limit on order. The State’s Sixth Circuit. measure to insure free is also public highways use of the Nov. Submitted imposition of a mes- protect against July Decided Finally, sage captive recipients. the ex- Project from the is view- clusion of the Elan

point-neutral.

AFFIRMED. case, public official to determine question stitutional to enable a the statute in has not 1. In this subjected challenge, permitted facial a test this expressions been to a will be which of view v. State statute not survive. See Cox providing will ... use of a statute which Louisiana, 379 U.S. discretionary licensing power"). system of broad (1965) (finding "clearly uncon-

Case Details

Case Name: State of Tex. v. Knights of Ku Klux Klan

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 25, 1995

Citation: 58 F.3d 1075

Docket Number: 94-40425

Court Abbreviation: 5th Cir.