A Silent Persistence: The Ku Klux Klan’s Lingering Presence in America Today

Over the last half-century, many states have passed laws outlawing the wearing of hoods.  In 1951, Georgia enacted the Anti-Mask Act, targeting the Ku Klux Klan by making it illegal to wear a “mask, hood or device by which any portion of the face is so hidden, concealed or covered so as to conceal the identity of the wearer” in public or in private without permission. 

The KKK was founded in 1865.  During the Reconstruction era, the Klan violently targeted African Americans, hoping to strip them of their newly established civil rights.  As segregationist policies and white supremacy rose toward the end of the 19th Century, the need for the Klan lessened, and their activities declined. 

However, in 1915, when the film The Birth of a Nation was widely screened, the KKK resurged.  Throughout the 1920s, the Klan conducted marches in major American cities, and an estimated three million to eight million Americans were KKK members.  However, as Jim Crow policies became scrutinized for fueling racial violence, the Klan’s power and appeal seemingly faded.

Following the Supreme Court’s decision to desegregate schools in 1954, the Klan resurfaced once again.  During the 1960s, it pursued a campaign of violence in response to the Civil Rights Movement, hoping to scare and interrupt the growing movement.  The group executed many bombings during this period, such as the deadly 1963 Birmingham Church Bombing.  As it grew more clear that local governments and police officers often helped the KKK attack, the federal government finally intervened and used its powers to crack down on the group, causing it to dwindle away.

Today, the Klan exists in small, independent short-lived chapters without a formal leader.  It has expanded its targets, and now, in addition to African Americans, it also demonstrates against homosexuals, communists, and other minority groups.  Many Klan chapters have even formed alliances with neo-Nazi groups or adopted neo-Nazi customs and ideologies.

While the U.S. government has responded to the KKK’s violence — whether through the Enforcement Acts in the 1870s or the Civil Rights Acts in the 1960s — the government’s federalized structure severely inhibited its ability to combat the Klan.  Instead of taking a more aggressive, centralized approach, the federal government left much up to state and local governments.  While some of these governments took measures to combat the KKK, others either declined to take action, or in some cases, actually helped the group flourish.

It wasn’t until 2018 that a federal law was passed criminalizing lynching.  The Justice for Victims of Lynching Act classifies lynching as a hate crime in America and attempts to provide reparations for the government’s failure to prohibit lynching sooner.  It is certainly reasonable to ask why it took so long for the federal government to outlaw such abhorrent criminal activity. 

The federal government’s limited response to the Ku Klux Klan continues today.  No U.S. Secretary of State has declared the group a terrorist organization, despite its violent tactics.  In terrorist declarations, The Secretary of State “may designate foreign individuals or entities that he determines have committed, or pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the U.S.”  Designating terrorist organizations greatly disrupts their networks within the U.S. by making them removable from the country, making it illegal to provide them with resources, and heightening public awareness about the threats they pose.  Unfortunately, the existing criteria for designation dangerously classifies terrorist groups as foreign, contributing to biases that make it less likely for the KKK to be classified as a terrorist group and subject to consequences.  Another roadblock to the group’s designation is that the American public tends to not perceive white perpetrators of violence as a part of a larger terrorist campaign.  Indeed, many Americans only consider terrorists to be foreign groups or individuals, and particularly Islamist extremists, even though far-right white extremists commit far more attacks on U.S. soil.  This is in part due to the media’s hesitancy to portray white extremism as terrorism, and due to widespread pro-white implicit biases among the American public.  In addition, when individuals in power, such as former President Donald Trump, use xenophobic rhetoric, they perpetuate the view that white Americans are unflawed and incapable of being terrorists.  For example, before he was elected, President Trump exclaimed that Gonzalo Curiel, a federal judge, gave biased, unfair rulings because “he’s a Mexican.”   

The Klan has also been at the center of various First Amendment court cases, some in which the Supreme Court has upheld the Klan’s rights.  For example, in Brandenburg v. Ohio (1969), the Court decided that states can only prohibit speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  This ruling overturned the conviction and 10-year prison sentence of Brandenburg, a Klansman who, in an anti-Semitic and racist speech, violated Ohio’s Criminal Syndicalism Law, “[advocating] . . . the duty, necessity, or propriety of crime, sabotage, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”  This textualist interpretation of the First Amendment leaves room for hate speech, empowering the KKK.  In order to prevent danger and extremist hate based upon race, the Supreme Court must adapt the Constitution to today’s social and political climate by adopting a more discriminating view concerning what speech the First Amendment protects.

It is reasonable to conclude that the government’s lack of direct opposition to the Klan has perpetuated white supremacist sentiment in America.  For example, at the start of the pandemic, a man shopping at a Vons Grocery Store in San Diego, California wore a KKK hoodie in lieu of a mask, and police officers decided “there was ‘insufficient evidence’ to bring criminal charges.”  And more recently, in July 2021, the Texas State Senate successfully passed a bill “that would remove a requirement for public school teachers to teach that the Ku Klux Klan is ‘morally wrong.’”

 Our court system has undeniable influence over Ku Klux Klan activity.  If the American system were to adopt a “living Constitution” style of interpretation, as I advocate it should, the First Amendment would no longer protect Klan members.  It is imperative the Court acts to break the KKK’s silent lingering presence today, preventing a future resurgence.