Alito jokes about KKK ‘Outfits for Kids’ while discussing Free Speech Case

• During oral arguments in a case involving free speech, Justice Samuel Alito made an odd joke. 
• “You do see a lot Black children in Ku Klux Klan clothes, right?” Every day. Alito joked. 
• Justice Ketanji Brown Jackson had presented a hypothetical. 

While debating a case regarding free speech Monday, Supreme Court Justice Samuel Alito made an odd joke about Black children wearing Ku Klux Klan costumes. 

The justices were not yet in place. hearing oral arguments in 303 Creative LLC v. Elenis — a case that will determine whether an anti-discrimination law in Colorado violates a web designer’s first amendment right to freedom of speech because she only designs wedding websites for heterosexual couples — Alito referenced a hypothetical presented by Supreme Court Justice Ketanji Brown Jackson. 

Jackson’s scenario involved a photographer refusing to take photos of Santa Claus in a mall with children who were not white. Alito continued the scenario by asking Alito if a Black Santa Claus should be required to take photos with a child wearing a Ku Klux Klan costume, even though he doesn’t want to be photographed with a child belonging to the KKK. 

Colorado Solicitor-General Eric Olsen replied “No, because Ku Klux Klan attires are not protected characteristics [under public accommodation laws],” 

Supreme Court Justice Elana Kagan clarified that the same KKK outfit can be worn by children regardless of whether they are “Black or white” or have any other characteristics. The same law would apply. 

“You do see a lot Black children in Ku Klux Klan costumes, right?” Alito laughed. “All the time.” 

—The Recount (@therecount) December 5, 2022

Alito, one the court’s conservative justices laughed, before Kagan took the microphone and continued the debate.