Black lawyer who defended white racist reveres Bill of Rights

Tuesday, February 1, 2005

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

In a Black History Month profile of an African-American attorney and First Amendment advocate, you might expect to hear that he’d defended an adult bookstore or challenged government secrecy. You wouldn’t think he’d have gone so far as to defend the free speech of the Ku Klux Klan.

But David P. Baugh has.

Baugh represented Ku Klux Klan member Barry Elton Black when Black was prosecuted for burning a cross at a Klan rally in Virginia in 1998. The case ended up in the U.S. Supreme Court.

But that was not the Richmond, Va.-based attorney’s only defense of the First Amendment. The criminal-defense lawyer was the lead plaintiff in a lawsuit challenging the excessive confidentiality surrounding complaints filed against members of the judiciary. He has also defended pornography-obscenity cases.

Such advocacy has earned Baugh acclaim for his unwavering commitment to the Constitution in unpopular cases.

First Amendment expert Rod Smolla, dean of the University of Richmond School of Law, calls Baugh a “superb criminal-defense attorney who is passionate about the Constitution and First Amendment.”

“He is as devoted to the Bill of Rights as anyone I know,” says his friend and fellow Virginia attorney Gerald Zerkin, who handles death-penalty cases as an assistant federal public defender. “He is an exceptional trial attorney and a wonderful cross-examiner. He is one of the best cross-examiners of official witnesses, such as police officers and forensic examiners. It is testament to his abilities that when police officers need representation in criminal cases, they regularly retain David.”

Early exposure to the legal system

Baugh first began to think about the law when he was a student at Pearl High School in Nashville, Tenn., in the mid-1960s. He went downtown with several classmates to engage in a sit-in to protest segregation, and wound up in detention. His interest in the law sparked upon the arrival in the courtroom of the famed African-American attorney Z. Alexander Looby.

“I remember that a great lawyer named Z. Alexander Looby came to represent us,” Baugh said. “I was impressed with his abilities and it got me thinking about the law.”

Baugh began seriously considering a career in law following his involvement in another controversy, this time at college. While a senior at Virginia State University, Baugh led several students in demonstrating against what they perceived as the breakup of historically black colleges throughout Virginia. Baugh and others were expelled for their protest.

“The ACLU stepped in to represent us and I remember watching the lawyer Arthur F. Samuels represent us,” Baugh recalls. “I remember sitting in court thinking, ‘I can do this.’ At that time, I was a business major thinking about going to drama school. But that experience turned me on to law as a career.”

Law school, legal career

After obtaining his business degree, Baugh did go to law school. He went to Texas Southern University in Houston. Like many first-year law students, Baugh was, at times, overwhelmed. Fortunately, Baugh had a revelation as to how to study the law: “Then, all of a sudden while studying in the undergraduate library, the sky opened up for me. God tapped me on the shoulder and I had a epiphany. I suddenly realized, ‘This is the law,’ and it got easy.”

Baugh served in private practice and then became an assistant U.S. attorney in Beaumont, Texas. He worked there until he was transferred to the eastern district of Virginia in Richmond as an assistant U.S. attorney. It should have been a great experience but Baugh again found himself embroiled in controversy.

The incident occurred in 1982 in the courtroom of Judge D. Dortch Warriner. At a sentencing hearing involving a white-collar defendant, Baugh said that “from reviewing the records (of past sentences in the judge’s courtroom), it appears the color of the collar is not the key.”

The judge questioned whether Baugh thought that he, the judge, considered race in sentencing people. Baugh replied, “Yes, your honor.” He soon faced discipline and national press coverage ensued. Baugh’s tenure was short-lived.

“The judge asked me whether I thought he took race into account,” Baugh recalls. “I said yes and soon after that I was doomed to become a criminal-defense lawyer. He asked me the question and I thought, ‘Well, somebody has to tell the emperor that he has no clothes.’”

Return to private practice

Baugh decided to remain in Richmond and build a private criminal-defense practice. For more than 20 years, he has taken many a controversial case and served on the legal advisory panel for the American Civil Liberties Union. He has defended alleged gang members and international terrorists.

He also, on occasion, handles First Amendment cases, such as defending an adult bookstore from obscenity charges. Baugh believes that there are misconceptions about the regulation of pornography and the Bill of Rights.

“The first fallacy about pornography is that when the Framers drafted the Constitution and the Bill of Rights … they did not envision pornography,” Baugh says. “That is bunk. The Framers had dirty books, they knew what pornography was.”

Baugh also served as the lead plaintiff in a case challenging a procedure in Virginia making secret the process of filing complaints against judges.

“The idea of confidentiality and secret proceedings just smelled funny to me,” Baugh recalls. “I had a complaint against a judge and after I filed it, I received a note, telling me that if I talked about the complaint, I was subject to being prosecuted for a misdemeanor. I called up Jerry Zerkin and told him my First Amendment rights were being chilled. He and Rod Smolla, another brilliant lawyer, stepped in and handled the case.”

A federal district court rejected Baugh’s lawsuit but the 4th U.S. Circuit Court of Appeals reinstated the suit in July 1990 in Baugh v. Judicial Inquiry and Review Commission. The appeals court reasoned that the Virginia law was a content-based restriction on speech that could only be justified by the highest form of judicial review known as strict scrutiny. The case went back down to the district court and Baugh prevailed.

The Black case

Baugh’s biggest First Amendment case began when he decided to represent a Klan member in a cross-burning case. In August 1998, Barry Elton Black led a KKK rally on private property in Carroll County, Va.. Though Black had permission to use the property, a local sheriff arrested him under a state law that prohibited cross-burning with the intent of intimidating a person or group of persons. An unusual aspect of the law is that it contained a provision stating that “any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”

Baugh, who served on the legal advisory panel of the ACLU, said, “When I saw there was a criminal case for the burning of a cross, I told the other members: ‘I’ll take this.’ I was the only member of the panel that practiced criminal law almost exclusively. I didn’t think it was going to be that big a hoopla. The other members of the panel asked me, ‘Are you sure you want to do this?’ I said, ‘Of course.’

“I just felt I had to defend the right to freedom of speech. The statute was clearly unconstitutional and inconsistent with the philosophy of law.”

Baugh called Black and left a message. When Black returned his call, Baugh said he would represent him.

“I told him, ‘Before I take the case, you should know that I’m African-American, partner. Is that going to bother you?’ He said, ‘No, I’ve checked you out and I think you can do as fine a job as any white man.’”

Baugh said he wasn’t offended by Black’s racist comment.

To Baugh, it was a no-brainer to take the case. “As a lawyer, you don’t endorse your client’s behavior when you represent him or her,” he explains. “If Mr. Black had an accident and had to be rushed to the hospital and his life was saved by a Jewish or Pakistani doctor, no one would have thought anything about that. But, somehow because I’m an African-American lawyer, it’s different.”

Baugh says he suffered no adverse reactions from the legal community in Richmond.

“I suffered no backlash and didn’t lose any clients as a result of representing Mr. Black. I even had judges stop me during trial and call me to the bench to congratulate me for taking the case. I received a favorable editorial in our conservative newspaper. I never received any criticism from any lawyer in Virginia.”

Baugh says he didn’t receive nearly the level of criticism of Texas attorney Anthony Griffin, who was dismissed from the Texas NAACP for his defense of a Klan member in the early 1990s. “Now, Anthony Griffin was a true hero,” Baugh says.

However, there was some criticism of Baugh for taking the case. Zerkin says that doing so made Baugh “unpopular in certain quarters.” First Amendment expert Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, wrote in a column that Baugh was indeed criticized by “friends, colleagues and neighbors,” African-American as well as white.

It didn’t matter. To Baugh the case was about protecting the Constitution, rather than protecting Black.

During the trial, Baugh made First Amendment-based objections to some of the trial judge’s jury instructions. The judge rejected those arguments and submitted the case to the jury, which found Black guilty and fined him $2,500.

When the ruling was appealed, Baugh remained involved to some extent, though Smolla had primary duties as the leading appellate lawyer. The Virginia Supreme Court consolidated Black’s case with two other cross-burning cases and invalidated the statute on First Amendment grounds.

However, the state appealed to the U.S. Supreme Court, which upheld the statute but struck down the so-called “prima facie provision” that created a presumption that all cross-burnings were done with an intent to intimidate.

“The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross is intended to eliminate,” Justice Sandra Day O’Connor wrote for the Court in Virginia v. Black. “The First Amendment does not permit such a shortcut.”

The Court went on to say that Barry Black’s “conviction cannot stand.”

“Black is the perfect example of David’s commitment to the First Amendment,” says Zerkin. “It says it all.”

Reflections on the Bill of Rights

As a volunteer attorney for the ACLU, Baugh has represented several students in cases implicating constitutional law principles. Though the cases he handled were Fourth Amendment search-and-seizure cases, Baugh also believes strongly that young people should not lose their First Amendment rights in school.

“You can’t teach children to protect our rights and the principles that make us America unless you allow them to be protected by them,” Baugh says. “You can’t deny the rights to the people that are supposed to perpetuate them.”

Americans must respect the principles underlying the Bill of Rights, Baugh affirms. “Principles are what make us American,” he said. “Our Constitution, including the First Amendment, is our moral rudder. It keeps us going straight and we have to have faith in it.”

This faith means that, with respect to the First Amendment, people have to tolerate offensive expression. “For some reason, many people in the nation believe that among the enumerated rights in the Bill of Rights is the right not to be uncomfortable,” he says. “In a democracy, that is not only untrue but also stupid. People have a right to say things that make other people uncomfortable.

“The Bill of Rights is one of the most brilliant and beautiful documents ever written,” Baugh said. “It is based on the idea that all humans are capable of extraordinary acts. I believe this to be true.”

The First Amendment is an extraordinary part of the Bill of Rights. It serves as our blueprint of personal liberty. This amendment survives and thrives only through the efforts of determined and committed defenders of the Constitution like David P. Baugh.

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