Ben Elton Cox: Civil rights leader to high court litigant

Tuesday, January 16, 2007

One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” below).

In the 1950s and 1960s, a few special individuals risked their lives and their liberty by leading civil rights demonstrators in public protests against segregation. They faced denigration, danger and even death. Martin Luther King Jr., Medgar Evers, Ralph Abernathy, James Farmer and John Lewis are just some of the more well-known. But there were others who felt the call of leadership and sacrificed personal comfort for collective change. One such heroic individual was Ben Elton Cox.

Cox, an ordained minister and member of the National Association for the Advancement of Colored People (NAACP) and the Congress of Racial Equality (CORE), led young students on sit-in movements and served as one of the original 13 Freedom Riders.

“Some of my family members thought I was a little off. One of my brothers told me: ‘I’m tired of reading about you and seeing you on television,’” Cox recalls. “He told me if I would leave the South and come up North, he would build a church for me.”

Cox continued in his civil rights protest activities in North Carolina, Louisiana and other states. It was his efforts in Louisiana that led to a famous U.S. Supreme Court case bearing his name. His case actually led to two Supreme Court decisions called Cox v. Louisiana I/II that reversed his state-court convictions for disturbing the peace, obstructing public passages and picketing before a courthouse.

Early passion for civil rights
Cox’s commitment to civil rights began early in life. Born in Whitesville, Tenn., he wondered about the state of the world when reciting the Pledge of Allegiance in kindergarten. “We would recite the Pledge and its last words of ‘for liberty and justice for all,’” he recalls. “I knew the Pledge, but I knew that it didn’t mean what it said because we had to get off the sidewalks when a white person came by and had to hike up extra stairs and sit in the worst seats in the theaters.”

Cox’s passion for civil rights grew in high school in Kankakee, Ill., when he and a couple of friends became offended at a minstrel show, which to them represented a degradation of his race. Cox and others protested to the principal, who agreed to stop the shows.

“That served as a catalyst to me in terms of civil rights,” Cox recalls.

He attended college in North Carolina and then seminary at the Howard University School of Religion. While at seminary, he heard Martin Luther King and baseball pioneer Jackie Robinson speak. They inspired him. So did Mamie Till, the mother of Emmett Till, a black teen killed in Money, Miss., for allegedly whistling at a white woman.

After graduation, Cox went to High Point, N.C., where he preached and served as a youth NAACP adviser, leading protests against segregation at lunch counters, swimming pools and other places of public accommodation.

“I led the first sit-in protest involving high school students,” Cox says.

While working with the NAACP, Cox met James Farmer, the founder of CORE. Inspired by Farmer’s fiery passion and unwavering commitment, Cox took a job as CORE field secretary for North Carolina and Louisiana. It was in this position
that Cox participated as an original Freedom Rider.

“There were six blacks and seven whites,” Cox says. “We all went on those two buses fully expecting to die. Farmer told us to write our wills before we went on those buses.”

Cox survived the Freedom Rides, though not without suffering violence in South Carolina and Alabama, where, in Anniston, one of the buses was burned. After the Rides, Cox was sent to Louisiana to help lead protests.

Baton Rouge protest
Cox’s place in history was ensured by his work in Baton Rouge, La., where he was arrested and jailed at least 10 times. His
most well-known arrest occurred in December 1961. Cox and others in CORE decided to protest the discriminatory treatment of 23 students from Southern University who were arrested for conducting a series of sit-ins downtown. Cox took center
stage in the large-scale protest after the police arrested fellow CORE leader Ronnie Moore for failing to have a permit for a loudspeaker.

Cox led 2,000 students from Southern University on a march near a courthouse in downtown Baton Rouge. By most accounts, the students engaged in a peaceful protest, walking in an orderly fashion down one sidewalk before stopping about
100 feet from the courthouse. The protesters bore signs that read, “Don’t buy discrimination for Christmas” and “Sacrifice for Christ, don’t buy.” They sang “God Bless America” and “We Shall Overcome.” Cox then delivered a short speech and urged students also to protest segregation at the lunch counters downtown.

Unfortunately, Cox recalls, one nervous sheriff deputy unleashed a tear-gas shell on the protesters, and the demonstration was dispersed. Cox was taken to a hospital and released. However, the next day while preaching in the pulpit, Cox was arrested on charges of criminal conspiracy, disturbing the peace, obstructing public passages and picketing before a courthouse.

Tried in a segregated courthouse, Cox was acquitted of criminal conspiracy but convicted on the other three charges. The trial judge stated at one point: “It must be inherently dangerous and a breach of the peace to bring 1,500 people, colored people, down in the predominately white business district in the City of Baton Rouge.” Cox faced a $10,000 fine and two years in the state prison in Angola, a place known for its brutality and inhumane conditions.

The Louisiana Supreme Court affirmed Cox’s conviction on all three charges. The last hope for Cox was the United States Supreme Court.

“I was discouraged by losing in the state courts but kept hoping and praying that I would win in the end.”

Court of last resort
Cox did “win in the end” before the court of last resort. On Jan. 18, 1965, the U.S. Supreme Court reversed Cox’s three
convictions in two separate published decisions. One opinion dealt with the disturbing the peace and obstructing public passages charges, while the other opinion dealt with the picketing before a courthouse conviction.

Justice Arthur Goldberg wrote the majority opinions. Cox prevailed 9-0 on the disturbing the peace charge, 7-2 on the obstructing public passages and 5-4 on the picketing before a courthouse conviction.

Goldberg wrote that convicting Cox for a peaceful protest was anathema to the First Amendment. A conviction under these circumstances, he said, “would allow persons to be punished merely for peacefully expressing unpopular views.”

Goldberg and six other justices reversed the obstructing public passages charge because the state law gave public officials unbridled discretion in enforcing the law. The state law allowed parades and demonstrations only if individuals obtained prior permission and a permit. City officials routinely allowed parades for many groups, but not for those protesting civil rights. This selective picking and choosing offended Justice Goldberg, who wrote:

“This Court has recognized that the lodging of such broad discretion
in a public official allows him to determine which expressions of view will be
permitted and which will not. This thus sanctions a device for the suppression
of the communication of ideas and permits the official to act as a
censor.”

The close margin came with respect to the picketing before a courthouse charge. Louisiana had passed a law barring such picketing in 1950, modeling it after a bill in Congress. The federal legislation came about in response to picketing that followed several trials of communist leaders.

Goldberg recognized that the state had a “legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create.” He also held that the law was valid on its face from First Amendment attack. However, Goldberg still ruled in favor of Cox, who had stopped the protest 101 feet from the courthouse. Goldberg wrote that “at no time did the police recommend, or even suggest, that the demonstration be held further from the courthouse than it actually was.”

He reasoned that it would violate due process to convict Cox of violating the statute when high-ranking police officers seemed to acquiesce to allowing the protest near the courthouse. Allowing the conviction to stand would, according to Goldberg, be tantamount to punishing someone for conduct that he was told was lawful.

Four justices dissented, with Justices Hugo Black and Tom Clark writing with strong language. Black warned: “Minority groups in particular need to bear in mind that the Constitution, while it requires States to treat all citizens equally and protect them in the exercise of rights guaranteed by the Federal Constitution and laws, does not take away the State’s power, indeed its duty, to keep order and to do justice according to the law.”

Justice Clark, former head of the Criminal Division of the Department of Justice, was more blunt in his dissent. He referred to Cox’s “brazen defiance of the statute” and opined: “Goals, no matter how laudable, pursued by mobocracy, in the end must always lead to further restraints of free expression.”

For his part, Cox says the Court’s reversal of his convictions were a victory for freedom of speech and assembly, rights essential to the civil rights movement.

“Freedom of speech and freedom of assembly are what this country is all about,” he said. “No one should be able to take those constitutional rights from us.”

Cox, who now lives in Jackson, Tenn., remains grateful to the U.S. Supreme Court and, in particular, Justice Goldberg who wrote the decisions. “I’m still to this day a little ashamed that I did not write Justice Goldberg and thank him for his opinion,” Cox says. “He kept me out of prison.

“I look back on the Supreme Court case with pride,” Cox says. “It makes me feel good.”

Anyone who supports the cause of civil rights and the importance of the First Amendment should share those sentiments from this First Amendment hero.

Comments from Cox were drawn from an interview arranged by Freedom Forum Diversity Institute Fellow Ken Mullinax and conducted by Mullinax and David L. Hudson Jr., and from a later telephone interview by Hudson.

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