T o Kansas native Keen A. Umbehr, the freedom to write newspaper articles critical of elected officials was his constitutional right. To the county commissioners he routinely skewered, it was rubbish. And to the Supreme Court of the United States, it was No. 94-1654, a case that redrew the nation’s legal landscape while it captivated the imagination: A garbage man from small-town rural America with a high-school education could, indeed, battle powerful local politicians, take an issue to the highest court in the country and, against all odds, win. Since 1981, Umbehr had been the trash hauler for Wabaunsee County in northeastern Kansas where, from the back of his garbage truck, he watched county officials conducting county business and came to the simple conclusion that “things just didn’t seem right.” “Some people see something wrong and walk away,” Umbehr said. “To me, I cannot not get involved.” Getting involved meant jeopardizing his livelihood, facing the ire of a tiny community where roots run deep and memories run long, and withstanding an intense six-year journey to the Supreme Court to determine whether the First Amendment’s guarantee of free speech protected independent contractors who criticized government officials. “We’ve been fighting for so long,” he once told his wife, Eileen, “that we sleep with our swords.” The opening salvos had little to do with Umbehr’s First Amendment rights. Within weeks after he started hauling the county’s trash, the county commissioners denied him access to the county landfill, saying that it would fill too quickly and that Umbehr had agreed to develop his own landfill. Umbehr challenged their decision, won binding arbitration and, when the county ignored the ruling, twice won in district court. When the county gave him access – and also raised the landfill rates – Umbehr sued and settled out-of-court. He began attending government meetings and, in 1989, he started writing columns critical of local government for the weekly newspaper, the Signal-Enterprise. He visited a nearby law school library where a librarian showed him how to do legal research. He learned about the state’s open meetings and open records acts, about libel and slander, about quotes and corroboration. He became an indefatigable – some would say intractable – watchdog whose questions and comments would extend evening meetings well into the early morning hours. “Anyone will tell you, I’m just a trash man,” Umbehr says with a boyish, self-effacing, aw-shucks charm. “Things are either right or wrong, good or bad. Am I intolerant? Yes. But wrong? Never. Ever. Never.” His presence at public meetings combined with the weekly columns inflamed commissioners who, in turn, kept providing fodder for more columns. “The commissioners would read the articles and get mad as hell at him for telling half-truths and omitting the other half, of which he was fully aware,” said Don Patterson, the Topeka, Kan., attorney who argued against Umbehr at the U.S. Supreme Court. “He had a way of irritating people. They would get irritated at him and then they’d say things they didn’t mean.” What they said, according to court documents, became increasingly confrontational. One commissioner told Umbehr during a public meeting that he was “just full of bull–– … nothing but a damn troublemaker.” Another time, when Umbehr asked to address the commission, the commissioner said Umbehr would have to “get down on (his) knees and beg.” Still later, the commissioner called him nothing more than “trash, the stuff he hauled around in his trucks.” Increasingly incensed, in May of 1989, commissioners warned the newspaper’s owner of consequences if he didn’t censor Umbehr’s columns. Owner Bob Stuewe answered with a front-page editorial declining to censor articles “regardless of high pressure tactics.” After 39 years in the newspaper business, Stuewe said he’d seen his share of local controversies. “I was hardened to it,” he said. “I didn’t give in to anybody. What they said made me mad, it stirred me up a bit. I told them I didn’t run a newspaper that way and never would. Everything Keen said was true, and I knew it.” Throughout, Umbehr tape-recorded meetings and kept detailed records. He kept a camera in his garbage truck so he could photograph examples of what he claimed was government wrongdoing that he saw along the garbage route. Allegation followed allegation. He accused the commission of violating both the Kansas Open Meetings Act and the Open Records Act. Government equipment was used for personal gain, he said, and special people got special favors. “In my opinion, he was diabolically clever at the half-truth,” Patterson said. “He’s no great intellectual guy, but he’s pretty clever. He can create illusions with half-truths, and that’s what he did.” All told, Umbehr brought more than half a dozen legal actions against the county, including a second dispute over landfill rates that went to the Kansas Supreme Court and was decided in the county’s favor. “Suing is the modern way of settling disputes,” Umbehr said. “We used to do it with gunfights, but lots of times the bad guy was the better shot. Suing is better.” In one dispute, the state attorney general’s investigation into Umbehr’s allegations of an open meeting violation resulted in a consent decree, in which the commissioners acknowledged wrongdoing. In another, allegations investigated by the Kansas Bureau of Investigation found no cause for criminal prosecution but, according to court documents, did find “loose administrative practices and accounting procedures” that made it difficult to determine whether county resources were being properly employed. “At the local, state and federal level, people need watchdogs, and the watchdogs need watchdogs,” said Don Mogge, a retired Topeka, Kan., police officer and life-long resident of Alma, a small community in Wabaunsee County. “But people in small towns don’t want things stirred up, and Keen was a guy with a big paddle.” Ultimately, the newspaper lost its contract for legal advertising and, in January of 1991, Umbehr lost the trash-hauling contract. It was a tough time, he says. “We were fighting for our cow.” He sued in U.S. District Court, which ruled that independent contractors do not have the same First Amendment protection as government employees. Undeterred, Umbehr appealed. When the 10th Circuit Court of Appeals reversed that decision, Wabaunsee County asked the U.S. Supreme Court to hear the case. Obviously, Umbehr should have opposed a re-hearing, said Robert Van Kirk, the attorney who argued the case before the Supreme Court. At best, the Court would affirm his victory. More often, it overturned decisions. But there had been a “circuit split,” meaning circuit courts in some areas of the country had ruled differently on the issue. Independent contractors now had First Amendment rights in the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, but nowhere else. “Keen wanted to make the issue national in scope,” Van Kirk said. “He
wasn’t satisfied protecting his own rights – he wanted the workers throughout the country to have rights.” Although Umbehr eventually was persuaded to oppose the Supreme Court review, his willingness to risk his own victory is “representative of his adherence to principle,” Van Kirk said. “He was able to do this by just focusing on principle and nothing else. Man, he was dogged about it. He was rabid about it. I’ve never come across anyone in this day and age who will really put themselves down-and-out for fundamental principle.”
It was a principle that was rooted and nurtured through a circuitous childhood living abroad in countries where rights were anything but guaranteed. Umbehr’s father, Jim, who was in the oil business, moved the family from Kansas to Fort Smith, Ark., when Keen was 3. When he was 8, the family moved to Nigeria where, during the Biafran civil war, Umbehr witnessed the shooting of a taxicab driver who tried to drive through a roadblock in front of the family’s home. After two years, the Umbehrs moved to Angola, then to Singapore. “From the time he was 3, he was very cut-to-the-chase analytical,” said Umbehr’s mother, Jean, a retired registered nurse who lives with her husband near Conroe, Texas. “He always was very questioning . He was the one who stood up for the one being picked on and, as he got older, that kind of magnified itself.” During many of his formative years he “lived under the stress of difficult cultures where justice was swift and not everybody was given a fair trial,” she said. “Fairness depended a bit on who you were and where you were. To come back to a country where there’s a constitution, and it’s in force, and the little guy has as much chance as the wealthy, or almost, that was different.” Indeed, it was. Umbehr lived with an uncle in Alma during the summers and saw the stark contrast between living overseas and living in the United States “where the First Amendment meant something,” Umbehr said. “Singapore had all these rules,” he said. “You had to have your hair cut short, you had to have uniforms, you had no free speech, you had to be subservient to the government.” But in Singapore Umbehr met the woman who would become his wife and her brother, who 20 years later would work for the Clinton White House and ultimately take Umbehr’s fight before the U.S. Supreme Court. Eileen and Bob Van Kirk were two of nine children of a 3M executive on assignment in Southeast Asia. Living in Singapore certainly was an influence on Umbehr, Bob Van Kirk said. “While it’s a democracy, it was a very repressive regime,” he said. “People were very careful about what they said and did. It was apparent that it wasn’t just the right to vote with a secret ballot that makes a democracy. It’s what you’re permitted to do and whether you can express yourself freely without fear of government retribution.” When the Van Kirks returned home to Minnesota, Umbehr and Eileen Van Kirk wrote to each other. Umbehr spent his last semester of high school in England, where he experienced the “great energy and sense of relevance” associated with the public debates that occurred at the speaker’s corner of Hyde Park. “Some people hunt, some people golf. To me, to be involved in verbal combat is captivating,” he said. After high school, he enrolled at Hamline University, near Eileen Van Kirk’s home in St. Paul, Minn. He did poorly, quit after one semester, and the couple was married in June of 1978. They were 19 years old and, 11 months later, they were parents.
Eileen Umbehr’s first inkling of her husband’s twin love of justice and conflict occurred when his employer at a radiator shop directed him to mail “girlie magazines” along with customers’ orders. He refused and quit his job. The couple, with their first child on the way, moved to Kansas and lived in a house his parents owned in Alma. He went to work for Wabaunsee County’s weed department, bringing home $633 a month. When the county published a notice that it was seeking a new trash hauler, Umbehr bid on the job. It turned out to be “one fight after another,” said Eileen Umbehr, who shares her husband’s passion and principles, but not his love of conflict. The years were a roller coaster of stress during which victory could turn to defeat after excruciatingly long waits for the next court action. Throughout, she said, they withstood public verbal abuse, physical threats, acts of sabotage involving their trash-hauling equipment, community ostracism and community outrage. Supporters stayed silent. “It ate our lives up,” she said. “We lived lives of conflict and fear and uncertainty. The times that were the hardest were when we were both down and neither had anything left to give. He did lose it sometimes. We would just hold each other and cry.” By now they were the parents of four sons who were, at the time of the Supreme Court decision, ages 17, 15, 11 and 7. “It was like a big charade sometimes, trying to be parents and putting on birthday parties,” she said. “We were dying inside, both of us. But you have to be calm. You have kids, and you have to act secure while you’re beating off dragons at the door.” If there were dragons at the door, the boys never knew it. Son, Josh, now a 20-year-old college sophomore, remembers a childhood replete with lively dinner-time debate and a strong underpinning of justice and security: What their parents believed in, and said would happen, did. There were clear distinctions between right and wrong. Responsibility was meted out gradually until, by the time they were teens, they knew both responsibility and the consequences of irresponsibility.
On June 28, 1996, seven months after the oral arguments before the Supreme Court – a long time even by the Court’s standards – Sandra Day O’Connor delivered the 7-2 decision in Umbehr’s favor. The Umbehrs settled with Wabaunsee County for $265,000, and Umbehr later won the Arlington, Va.-based Freedom Forum’s highest honor for expanding the rights of free speech and free press. “Not only did the case broaden free speech rights for literally thousands if not tens of thousands of people, it serves as a very important example of somebody who can take a case to the Supreme Court without much in the way of resources or hope,” said Paul
McMasters, the Freedom Forum’s First Amendment ombudsman. “He is one of those rare individuals who can see the importance of First Amendment rights for all citizens and is so committed to it that he put his reputation and his family’s livelihood on the line to support that principle.” After the Supreme Court victory, Umbehr continued to pick up the trash of the people who tried to silence him. Two and a half years later, he sold the business and, now 42, attends Kansas State University in Manhattan, Kan., where he is completing a bachelor’s degree in political science. He has a 3.75 grade-point average on a 4.0 scale and plans to attend Washburn University School of Law in Topeka, Kan., in January. “I like people, and I want to help them with their problems,” Umbehr said. “A law degree is like going to war and having a weapon. I want to use it to make government better.” Over the years, armed with the belief that “if you want to change the world, you start with what’s around you,” Umbehr was elected to the local city council and the school board, although he lost four races for county commission. Now he has set his sights higher: Someday, he says, he may run for governor. Meanwhile, Signal-Enterprise owner Bob Stuewe sold the newspaper and retired. The paper has since regained its designation as the official county newspaper. Keen Umbehr “opened a lot of eyes to what was going on,” said June Maike, a waitress who supports the belief that government needs watchdogs. “But, at the time, most people wished he would have left things alone.” There are different county commissioners now, and the Umbehrs are not a coffeehouse topic any more. But some townspeople still share a distaste for what they say is a case of someone who went too far and divided the community in the process. Does Keen Umbehr go too far? Absolutely, says son Josh. “He goes too far in everything – with lawsuits, with research, with debating and arguing. He does everything overboard, and overboard makes things fun.” Going too far, Josh Umbehr says, is when his father, apparently in a disagreement with a professor, receives a minus 1,000 on an assignment and posts it in the kitchen for all to see. Umbehr’s mother, from whom some say he inherited his assertive style, asks a telling question: “What does ‘too far’ mean?” And the Freedom Forum’s McMasters takes a more philosophic view: “There is,” he said, “a thin line between rightness and righteousness. That’s the line that every passionate advocate brushes up against. Their advocacy makes a lot of people uncomfortable. Some of that has to do with guilt because they’re not fighting themselves. But the fact is, the person who pushes hard for accountability in government often is denounced as a nut – or going too far – because that’s the last argument that can be made.” Be it rightness or righteousness, on July 11 of the Freedom Forum’s 2001 First Amendment calendar of daily quotations, among the quotes from authors and orators, poets and politicians, diplomats, historians, journalists and Supreme Court justices, are the words of a trash man from a town of 800 people in Wabaunsee County, Kansas: “Just as the government cannot dictate the direction we choose to travel, neither can it dictate our thoughts, our beliefs or our speech.”
Bonnie Bressers teaches in the A.Q. Miller School of Journalism and Mass Communications at Kansas State University.
