Free Speech Or A Threat? Vermont Supreme Court Decision Highlights Continuing Tension

Last week, the court overturned the conviction of a man who put Ku Klux Klan flyers on the Burlington homes of two women of color. The court said the state didn’t prove the action met the threshold of ‘threatening behavior.’

The decision highlights the on-going tension around protecting speech even when it's potentially threatening or hateful.

In 2015, two women found KKK flyers at their homes. None of their neighbors had gotten them.  The flyers show a robed Klansman, holding a burning cross and the phrase “join the Klan and save our land.”

Police arrested and charged William Schenk with two counts of disorderly conduct. He pleaded guilty, but the supreme court later overturned his conviction.

In its decision, the court said prosecutors didn't prove that Schenk's actions went far under Vermont's disorderly conduct statue to be threat.

Jared Carter, an assistant professor at Vermont Law School, said the state had to prove that Schenk’s actions — leaving the flyers — constituted an immediate threat to the two women.

“And that since the activities here were primarily speech — the delivery of some fliers, heinous fliers but speech nonetheless — the state, as a matter of fact, and a matter of law could not meet its burden of proof,” Carter said.

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