MLK Day: A time to celebrate the First Amendment

Friday, January 12, 2001
Rev. Dr. Martin Luther King Jr. speaks April 15,1967, at
peace rally in New York City.

As we celebrate Martin Luther King Jr.'s birthday, we also should take
time to commemorate the role the First Amendment played in the civil rights
movement. Too often we judge the First Amendment by some of the contemporary
company it keeps, forgetting that it often serves as a catalyst for social
progress in our democracy.

Sex-sleaze merchants wrap themselves in the First Amendment to
capitalize on the billion-dollar industry of pornography. Hate mongers wield it
as their sword and shield when espousing racist views that subordinate others.
Flagburners use the liberties of the first 45 words of our Bill of Rights to
attack our cherished symbol.

Some argue these groups tarnish and diminish the First Amendment. They
say our glorious freedoms of speech, press, religion, assembly and petition
only serve to protect extremist speech that offends, demeans and destructs.
“What valuable speech does the First Amendment protect?” they ask.

These arguments fail to realize two fundamental principles. First, the
First Amendment has been the catalyst for more social progress than any
moralizing efforts at speech sanitation. Second, the First Amendment ensures a
free society by protecting dissenting views — even those that we

We should remember that abolitionists, women suffragists and civil
rights protesters used the freedoms embodied in the First Amendment to expose
injustice and, in the words of King to “carve a tunnel of hope through the dark
mountain of disappointment.” These groups were branded as insurrectionists who
undermined the order and existing social mores in their time.

Abolitionists William Lloyd Garrison and Frederick Douglass exercised
their free-speech and free-press rights in attacking the evils of slavery in
their respective newspapers The Liberator
and the North Star.
Though the protections of the Bill of Rights were not extended to the states
until the adoption of the 14th Amendment in 1868 and later decisions by the
U.S. Supreme Court, the abolitionists bravely advanced their causes in the face
of considerable opposition and violence.

Freedom of speech and assembly proved valuable to the women's suffrage
movement of the 1910s. Without the placards, parades, soapboxes and marches
used by demonstrators, the historic passage of the 19th Amendment in August
1920 guaranteeing women the right to vote would have been delayed.

Precedent set by the suffragists' use of First Amendment freedoms
served King and countless others well during the civil rights movement.

Civil rights leaders spoke out against unjust, immoral segregation
laws. They led marches to demonstrate abuses. They engaged in various forms of
expressive conduct — such as sit-ins and wade-ins — to focus
attention on the second-class status imposed on African-Americans. They
petitioned government leaders in dramatic ways, seeking redress for

The civil rights era featured not only devoted leaders exercising
First Amendment freedoms, but also a U.S. Supreme Court that provided
substantial First Amendment protections for many aspects of the movement.

The U.S. Supreme Court protected printed criticism of Southern
officials in the New York Times
editorial advertisement that formed the backdrop of the great
press freedom case New York Times Co. v.

The high court also allowed demonstrators to march on state capitals
and to engage in sit-ins as protected expressive conduct. The justices also
protected the free-association rights of members of the National Association
for the Advancement of Colored People from assault by Southern state

“The First Amendment absolutely played a crucial role in the civil
rights movement,” said Chuck Stone, editor of several prominent
African-American newspapers during the time of the movement.

“Civil rights leaders gave speeches calling for their adherents to
break the law of the day,” said Cynthia Tucker, editorial page editor of
The Atlanta Constitution . “Happily,
the First Amendment protected that speech.”

“The First Amendment protected the right of civil rights leaders to be
very critical of public leaders,” Tucker said. “Without that protection,
protesters would have not had the successes they had in exercising their
free-speech and free-assembly rights.”

First Amendment expert Robert O'Neil, who clerked for Supreme Court
Justice William Brennan in 1962-1963, says the members of the court were
“keenly aware of the implications of their rulings for the civil rights

“The decisions of the court in NAACP v. Button and Times v. Sullivan
are unmistakably clear evidence that the court was very conscious of the
relationship between free expression and the civil rights movement,” O'Neil

Unfortunately, appreciation for the First Amendment seems to have
fallen by the wayside. Freedom Forum First Amendment Ombudsman Paul McMasters
described some negative findings in the First Amendment Center's 1999 State of
the First Amendment report as “a jolt to the constitutional conscience.”

“I think that Americans take the First Amendment for granted,” Tucker
said. “I think many people believe the First Amendment should protect speech
that may be unpopular but has moral authority — such as seen in the civil
rights movement.

“It certainly is true in modern times that the First Amendment
protects views that are both unpopular and immoral,” Tucker said. “But that
should not cause us to celebrate the First Amendment any less.”

If we do not protect the free-speech rights of those with whom we
disagree, we all lose our precious freedoms. The American Civil Liberties Union
cites the classic example of the 1949 decision Terminiello v. City of Chicago for the proposition
that “free-speech rights are indivisible.”

In Terminiello, the ACLU
successfully defended an ex-Catholic priest convicted of disorderly conduct for
delivering a racist, anti-Semitic speech. Supreme Court Justice William O.
Douglas wrote a stirring passage often cited in free-speech

Accordingly a function of free speech under our
system of government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for acceptance of an

The legal precedent from the Terminiello case was used to defend civil rights
demonstrators in the 1960s. The ACLU notes that “laws that defend free speech
for bigots can be used to defend the rights of civil rights workers, anti-war
protesters, lesbian and gay activists and others fighting for justice.”

Furthermore, it is important to realize that the constitutional
freedoms of the Bill of Rights apply to all Americans, but it is often those on
the edges who test those protections for all of us. Porno magnate Larry Flynt
once said: “If the First Amendment will protect a scumbag like me, then it will
protect all of you.”

Justice Felix Frankfurter said it well when he wrote in the 1950
decision U.S. v. Rabinowitz: “It is
a fair summary of history to say that the safeguards of liberty have frequently
been forged in controversies involving not very nice people.”

During the Martin Luther King Jr. holiday, we should take time to
appreciate the First Amendment — our blueprint for personal liberty.