First Amendment freedoms crucial to success of civil rights movement

Friday, January 15, 1999

The First Amendment played a crucial role in the epic struggles of the civil rights movement of the 1950s and ’60s, when Dr. Martin Luther King Jr. and countless others engaged in sit-ins, protests, marches and other demonstrations to force social change.

The rights of free speech and assembly enabled civil rights protesters on the streets of Birmingham, Selma and other cities throughout the South to force society to address the treatment of African-Americans.

“The civil rights movement featured various forms of free expression,” University of Columbia law professor Jack Greenberg told

Greenberg, who served as the director-counsel of the NAACP Legal Defense and Educational Fund, Inc. from 1961 until 1984, listed the petition for redress of grievances by students in Columbia, S.C., the march from Selma to Birmingham, the freedom rides, the sit-ins and the demonstrations in Birmingham as prime examples of civil rights advocates engaging in First Amendment-protected activities.

“The First Amendment right of assembly was the foundation of the civil rights movement of the 1950s,” said Western Kentucky University journalism professor Linda Lumsden, who has written on the role of freedom of assembly in the women’s suffrage movement.

University of Pennsylvania Professor Robert Richards, author of Freedom’s Voice: The Perilous Present and Uncertain Future of the First Amendment, agreed that “the First Amendment was the key tool of the civil rights movement.”

“Without the First Amendment and the protections breathed into it by the courts, the movement would not have flourished as much as it did,” Richards said.

Lumsden said that “the peaceful, nonviolent protesting raised public consciousness, challenged people’s beliefs and attacked the forces of power.”

“The Supreme Court is influenced by the cultural, political and societal influences of the times,” Lumsden said. “It helped the civil rights protesters that their cause was so sympathetic.”

Not only was the First Amendment essential to the civil rights movement, but the civil rights movement galvanized First Amendment ideals into legal precedent. In his 1965 book The Negro and the First Amendment, legal scholar Harry Kalven foresaw the unique changes in First Amendment law that would grow out of the civil rights movement.

In fact, Kalven wrote that “we may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us.”

First Amendment expert Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said that many areas of First Amendment law were shaped by the civil rights movement.

“The sources of pressure created by the civil rights movement coincided at a time when the courts were receptive to the expansion of First Amendment principles,” O’Neil said.

The cases that grew out of civil rights-era activism clearly show the force of the First Amendment in convincing the Supreme Court to issue rulings in favor of the demonstrators. “Nearly all the cases involving the civil rights movement were decided on First Amendment grounds,” Greenberg said.

Dr. Margaret Blanchard, the William Rand Kenan journalism professor at the University of North Carolina, said that “the civil rights protesters broke new ground in organizing together for certain causes, using various kinds of symbolic expression and emphasizing the right to march.”

Blanchard said there were numerous court decisions across the country siding with civil rights protesters who challenged parade ordinances that vested too much discretion in city officials who could — and sometimes would — deny permits because they disliked the group or its cause.

The Supreme Court issued several rulings protecting civil rights advocates from criminal charges for engaging in First Amendment-protected activity. In the 1963 decision Edwards v. South Carolina, the high court struck down the breach-of-the-peace convictions of 187 African-American students who marched to the South Carolina Statehouse carrying signs with messages such as “Down with Segregation.”

The high court said that the “circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form” and ruled that the government could not criminalize “the peaceful expression of unpopular views.”

In its 1961 decision Garner v. Louisiana, the court overturned the disturbing-the-peace convictions of five African-Americans who engaged in sit-ins at an all-white café counter in Baton Rouge. In his concurring opinion, Justice John Harlan wrote that a sit-in demonstration “is as much a part of the free trade of ideas as is verbal expression.”

Harlan wrote that a sit-in was entitled to the same level of First Amendment protection as “displaying a red flag as a symbol of opposition to organized government,” a form of expression that the Supreme Court protected in the 1931 case Stromberg v. People of California.

Numerous other principles of First Amendment law also were established in several cases decided during the civil rights movement. Among these cases O’Neil lists New York Times Co. v. Sullivan, which safeguarded press freedoms and constitutionalized defamation law; NAACP v. Button, which ensured access to courts and protected the associational freedoms of public interest groups; and NAACP v. Alabama, which protected the free-association rights of NAACP members from official harassment.

In its 1964 decision in New York Times Co. v. Sullivan, the high court reversed an all-white Alabama jury verdict against The New York Times for publishing an editorial advertisement criticizing the actions of certain Montgomery, Ala., officials for punishing African-American student protesters.

A group known as the Committee to Defend Martin Luther King and the Struggle for Freedom in the South made certain inaccurate statements in the advertisement. After Montgomery commissioner L.B. Sullivan sued and won $500,000 from a jury, the case was appealed all the way to the U.S. Supreme Court.

The high court struck the jury verdict, finding that “the rule of law applied by the Alabama courts is constitutionally deficient to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.”

This case must be considered, the high court wrote, “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

The court noted that the advertisement in The New York Times was “an expression of grievance and protest on one of the major public issues of our time.”

“The New York Times v. Sullivan case is the prime example of First Amendment freedoms being developed during the civil rights movement,” Richards said.

Richards said that the high court in Sullivan recognized that, for the civil rights movement to flourish, people must have the ability to speak out and be critical of government.

“In the New York Times v. Sullivan case the Supreme Court recognized that a national newspaper was being punished by a Southern jury on a matter of extreme public importance,” O’Neil said.

But New York Times Co. v. Sullivan is far from the only civil rights-era case that furthered First Amendment protections. In the 1963 decision NAACP v. Button, the Supreme Court ruled that the National Association for the Advancement of Colored People had the right to refer individuals who wanted to sue in public school desegregation cases to lawyers and to pay their litigation expenses.

A Virginia law had forbidden any organization from compensating an attorney in a case in which it had no direct monetary interest and also had forbidden organizations from intervening between lawyer and client. State officials charged the NAACP with violating these rules by encouraging people to become plaintiffs in desegregation cases, referring them to private attorneys and then paying their litigation expenses.

However, the Supreme Court ruled that the NAACP’s actions were “modes of expression and association protected by the First Amendment.”

“The Button case was extraordinarily important” because it represents the beginning of the public interest law firm, Greenberg said.

In NAACP v. Alabama, state officials demanded the names and addresses of all the members of the NAACP of Alabama.

The Supreme Court in 1958 held that compelling the disclosure of membership lists would violate members’ First Amendment free-association rights. The high court wrote that “privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

“NAACP v. Alabama established the right of people to join together to advocate causes even in hostile environments,” Blanchard said.

Each of these cases demonstrates the role that the First Amendment played in the civil rights movement and likewise shows the important role that the civil rights movement played in the development of First Amendment freedoms.

“It is likely that the same First Amendment doctrines would not have developed at the same rate and with the same force or conviction were it not for the civil rights movement,” O’Neil said.