On March 2, 1961, Jim Clyburn and nearly 200 other African-American high school and college students convened at the Zion Baptist Church in Columbia, South Carolina. They planned to march six blocks to the state capital to protest segregation and racial discrimination. Many of the students came from two local African-American colleges: Allen University and Benedict College. These young people fervently believed the current caste system needed drastic change. They heeded the clarion call for justice and wanted to make a profound statement against injustice. Some of the youth had engaged in sit-ins, a visible and effective form of nonviolent civil disobedience used by the Congress on Racial Equality (CORE) during the 1940s and used even more visibly during the late 1950s and in 1960 by four students of North Carolina A&T in Greensboro. The student-protesters would enter a business that catered to “Whites Only” and sit down for service – or no service. It took an incredible amount of courage, as these brave young people faced physical assaults from racist whites and arrests by the local police.
But, the protesters carried on in the spirit of civil rights leaders Dr. Martin Luther King Jr. and James Lawson, who believed the sit-ins were a particularly effective means of direct, nonviolent action. But, sit-ins often involved only a handful of protesters – three or four brave individuals protesting at a business that would not serve blacks. The hundreds of students at Zion Baptist Church wanted to make a larger, even more impactful statement. They wanted to engage in collective group action and make their points known directly to the South Carolina legislature – the body that could change segregation laws. Dr. King would write a couple years later (1963) in his famous “Letter From A Birmingham Jail” that nonviolent direct action “seeks to dramatize the issue that it can no longer be ignored.”
Clyburn recalled sitting in the front row of Mount Zion that morning on March 2. “We were challenging a system that needed to be challenged,” Clyburn said in February 2013, to a local South Carolina television news reporter. “We knew we were going to be arrested and we felt and said all I have to do is get my case to the United States Supreme Court because of the decision issued in 1954, Brown v. Board of Education. We just knew we would be vindicated.” In Brown, the Court had ruled unanimously that segregated public schools were “inherently unequal” and violated the Equal Protection Clause of the Fourteenth Amendment. The Court rejected the infamous “separate but equal” doctrine espoused in Plessy v. Ferguson (1896), where the Court had ruled 8-1 that public facilities could be separate as long as they were roughly equal. The reality was much different – the separate facilities were anything but equal. Facilities for whites were superior and funded better than facilities for blacks.
The young protesters at Mount Zion then sought to vindicate the spirit of Brown. The vindication ultimately would come, but it came at a price. Students at Allen University and Benedict College had held rallies to protest segregation in public schools in February 1960. Some faced violence for their social justice commitments. A month later, a few students from these schools conducted sit-in protests at the local Woolworth department store. The students had formed the South Carolina Student Movement Association to galvanize support for civil rights-related activities among young people. They planned in March 1960, to make a pilgrimage to the State House to shed greater public light on injustices. Governor Ernest Hollings, better known for his 38-year career in the U.S. Senate from 1966 to 2005, warned students at Allen and Benedict that they would be arrested if they participated in the pilgrimage. The South Carolina Council on Human Relations (SCCHR) called off the pilgrimage, particularly after the presidents of the universities opposed the idea.
However, student activism only continued in the next 12 months. Students at Allen and Benedict continued to engage in sit-in protests and other forms of social activism. In February 1961, the SCCHR hosted a student workshop at Allen University, entitled “The Role of the Student in Achieving Human Rights.” Ella Baker delivered the keynote address, stressing the importance of student engagement in participatory democracy.
Out of this cauldron of rising social awareness and activism emerged the idea to once again march on the State House. The students gathered at the Zion Baptist Church ready to make a difference. Many may have remembered that the Ku Klux Klan had marched to the State House only a few years earlier in 1957. If the Klan could mark to the statehouse, surely these young students had the constitutional right to make their feelings known. The young students marched in groups of 15 along public streets to the statehouse, carrying placards bearing messages such as “I am proud to be a Negro” , “You may jail our bodies but not our souls,” and “Down with segregation.” One of the student-protesters, James Edwards Jr. – the lead plaintiff in the case as it worked up through the court system, told The State years later: “We had God in front, so it didn’t matter what was behind us.”
The brave black students were joined by a lone white student named Frederick Elliot Hart, a most interesting character. Mr. Hart grew up in Virginia, loving learning but not traditional schooling. He failed out of school in the ninth grade, bored by the mindless homework. His parents sent him to South Carolina to live with his aunt, who forced him to enroll in a local school. Hart continued to avoid his studies and homework like the Bubonic Plague. A principal convinced him to take the A.C.T., thinking that his poor score might motivate the young man. Instead, Hart achieved a near-perfect score, a 35 out of a possible 36. The principal realized that young Mr. Hart simply wasn’t being challenged with the current curriculum. He helped Hart gain admission as a 16-year-old to the University of South Carolina. Hart recognized the injustices of segregation and joined the Mt. Zion protest as it headed downtown. “I remember him standing on the curb watching us and just spontaneously joining the march,” recalls Jim Clyburn.
The police learned of the march and had anywhere from 15 to 30 officers present on the scene. The student-protestors walked around the statehouse for approximately 45 minutes. Gradually, a group of people came to view the protest. These people congregated an area in front of the statehouse known as the “horseshoe.” The crowd of onlookers grew to more than 350 people. The city manager believed the situation could lead to disorder, as vehicular traffic began to be disrupted, and he allegedly feared that some troublemakers in the crowd could attack the protesters.
The city manager then told the student-protesters they needed to leave within 15 minutes or face arrest for disorderly conduct. Dan Carter, one of the student-leaders, then delivered what was later described as a religious harangue. He urged his fellow protesters to continue bringing their message of peaceful change to society and their views against segregation. The students defied this command and resorted to chanting religious and patriotic songs. Many clapped their hands, stomped their feet and sang the “Star Spangled Banner.” Some sang other protest songs.
The city manager then instructed the chief of police to arrest the 187 students, charging them with breach of the peace. The police chief complied and charged the students under the common law crime of breach of the peace. Common law refers to law that develops through judicial opinions. In other words, the police chief did not arrest the students under a narrowly defined disorderly conduct statute or ordinance, but under a rather broad, common-law crime of breach of the peace. In reality, the police could interpret breach of the peace to mean virtually anything the police did not like. The students had to spend the night in jail, but through the efforts of local civil rights attorney Matthew J. Perry, the students were released sometime the next day.
Magistrate judge Frank Powell heard the students’ cases in different groups of eight. He found them guilty and imposed a sentence of anywhere between one to five days in jail and a fine. He urged that young people not be used as pawns in the civil rights struggle. On appeal, Judge Legare Bates of Richland County Court affirmed the convictions. Perry and his law partner Lincoln Jenkins Jr. ably defended the students. During the course of the litigation, Perry cross-examined the chief of police and got him to admit the students had not engaged in disorderly conduct, were well dressed and otherwise behaved in an orderly fashion. “He was a superb and gifted advocate who was magnificent in the courtroom,” Clyburn recalled.
Perry was an excellent advocate – even against difficult odds. The state had to concede that the students were orderly, did not curse, did not threaten and did not block the public streets.
Perry left a lasting impression not only on the student-litigants, but also on one young white girl who snuck out of Dreher High School to watch the trial from the bleachers. She was impressed with how the lawyers, especially Perry, handled themselves in a very hostile environment. “His command of the law was complete and powerful,” she explained in a 2011 tribute to Perry published in The State. “He quickly and successfully objected to much of the State’s opening witness’ testimony. The state had to concede that the students were orderly, did not curse, did not threaten and did not block the public streets. Onlookers were amazed when Attorney Perry obtained several favorable rulings which excluded state-offered evidence. “That court case stuck with me,” she told MidlandsBiz. The case caused this young girl to go to law school. Years later that young girl, Jean H. Toal, became the chief justice of the South Carolina Supreme Court.
After losing in trial court, the protestors then appealed to the South Carolina Supreme Court, which unanimously agreed with the lower courts on December 15, 1961. Once again, Perry argued the case before the court. The state attorneys emphasized that the police officers and city manager simply wanted to avoid disruptions associated with the mass protest.
The state high court predictably sided with the government attorneys. According to the state high court, the case was not about the marchers’ free-expression rights to hold a demonstration. Rather, the case was about the nature of the criminal offense, breach of the peace. The police gave the marchers 15 minutes to desist from further expressive activity and disperse from the busy area. The state high court called the resulting response to the police orders “a noisy demonstration in defiance of orders” and a bunch of “boisterousness.”
Because notice was given and the actions of the police were reasonable, the state high court deferred to the officers’ judgment that the conduct of the students crossed the line into unlawful breach of the peace. “The orders of the police officers under all of the facts and circumstances were reasonable and motivated solely by a proper concern for the preservation of order and prevention of further interference with traffic upon the public streets and sidewalks,” the state high court wrote, reiterating that there were not only nearly 200 student-protestors but more than 350 interested onlookers.
Supreme Court Arguments
The student-protesters then took their case to the U.S. Supreme Court. With the assistance of the NAACP Legal Defense Fund, the students insisted that the breach-of-the-peace convictions trampled on their fundamental First Amendment freedoms of speech, assembly and petition.
The U.S. Supreme Court heard oral argument on December 13, 1962. Jack Greenberg, the director-counsel for the NAACP’s Legal Defense and Educational Fund, handled oral arguments for the students before the U.S. Supreme Court. Greenberg argued 40 cases before the U.S. Supreme Court in his illustrious career. The only white lawyer for the NAACP, Greenberg began his career with the Legal Defense and Educational Fund in 1949 and succeeded the legendary Thurgood Marshall in 1961 as the chief legal officer for the group.
In oral argument, he stressed that there needs to be violence or at least a chance of imminent of violence to have a breach of the peace. Greenberg argued before the court that “there was absolutely no evidence of violence or incipient violence” by the students or any of the onlookers. He argued that if there was to be any violence, it would have come from the white onlookers, not the African-American demonstrators. The duty of the police, according to Greenberg, would be to protect the student-demonstrators from the larger crowd, rather than to arrest the student-demonstrators.
Greenberg also emphasized the broad nature of the common-law concept of breach of the peace. He argued to the justices that this breach of the peace concept was too vague, particularly as it was applied to a group of quiet, orderly and well-mannered protesters who conducted themselves well under the circumstances. Greenberg explained to the Court that the students should not have been punished under “a generalized breach of the peace provision which exists in the common law.” He explained: “the vice of this kind of a vague, general common law doctrine when dealing with speech is not only that it gives unbridled power of the police to abuse their powers under the cloak of such a general authority.”
Attorney General Daniel McLeod responded for the state of South Carolina. McLeod, who served as attorney general from 1959 until his retirement in 1983, was not a bastion of inequality. He helped draft the state’s freedom of information law and urged passion of the Equal Rights Amendment. But, it was his duty to represent the state in this case. He emphasized that the police allowed the students to demonstrate and protest for at least 30 minutes unimpeded and without official interruption. He argued the protestors were then given notice to cease demonstrating. He also testified that there was evidence the protesting was obstructing traffic.
McLeod relied on the U.S. Supreme Court’s earlier decision in Feiner v. New York (1951), where the Court upheld the conviction of a resolute young student from Syracuse University named Irving Feiner. A former World War II veteran, Feiner started speaking on the corner of Harrison and McBride streets in Syracuse, New York, fulminating against racism. He urged Negroes to resist the oppressive white society. “The negroes don’t have equal rights,” he exclaimed. “They should rise up in arms and fight for their rights.” A growing crowd surrounded Feiner and many showed hostility to the young speaker. Many began to hurl insults at Feiner. Evidence in the record indicated that some in the crowd were “pushing, shoving and milling around.” Instead of protecting Feiner from the hostile crowd, the police arrested Feiner and charged him with incitement of a breach of the peace.
The U.S. Supreme Court upheld Feiner’s conviction by a 5-4 vote. The majority wrote that the police officers acted unreasonably in trying to diffuse a potentially volatile situation. Justice Hugo Black filed a fiery dissent, contending that the police should have protected Feiner instead of placing him under arrest. He explained that “today’s holding means that as a practical matter, minority speakers can be silenced in any city.”
The decision had grave consequences for Mr. Feiner. At the time of the event, he was a student at Syracuse University who had applied for admission at several law schools. Syracuse expelled him from school for his arrest. The arrest prevented him from attending law school. Years later in 2006, Syracuse opened the Tully Center for Free Speech. One of the keynote speakers was Irving Feiner.
While Syracuse finally made amends for its treatment of Irving Feiner in 2006, in late 1962 – when the U.S. Supreme Court heard oral arguments in the Edwards case, the Feiner case potentially stood as a huge hurdle for the Jack Greenberg and the student-protestors in South Carolina to clear. The South Carolina high court had cited Feiner for the principle that “if their acts constituted a breach of the peace, the power of the State to punish is obvious.”
Greenberg distinguished Feiner, pointing out that there was no evidence of any impending disruption. He also bluntly stated that the Court’s decision in Feiner was wrongly decided, stating: “we would submit that it was the dissenters in Feiner who were correct and who have been vindicated by subsequent law especially in this area and that the majority opinion no longer is the law.”
The Court’s Decision – a Victory for the First Amendment
The U.S. Supreme Court issued its decision in Edwards v. South Carolina on February 25, 1963. Justice Potter Stewart recognized the difference between a broad, common-law crime and a narrowly drafted ordinance. He wrote that “this would be a different case” if the petitioners were charged with violating a law regulating traffic or a law reasonably limiting protests during specific periods when the state house grounds were open to the public.
Instead the student-protestors were charged under a broad common-law breach of the peace law that enabled police officers to subjectively determine when peaceful protesters suddenly crossed the line into unlawful activity. The Court said that sanctioning such a view could “standardization of ideas” and the silencing of minority speakers.
Stewart wrote that the peaceful protest in Columbia “was a far cry from the situation in Feiner v. New York.” In Feiner there were threats of violence to the speaker and the “pushing, shoving and milling about.” In Edwards, there was “ample” police protection and no indication of any impending violence.
“The circumstances in this case reflect an exercise of these constitutional rights in their most pristine and classic form,” Justice Potter Stewart wrote for the U.S. Supreme Court. “The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.” Stewart said the actions of the student-protesters represented the epitome of the First Amendment freedoms of assembly and petition: “They peaceably assembled at the site of the State Government and there peaceably expressed their grievances to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.”
Only Justice Tom Clark dissented. He accepted the state’s argument that the student-protesters were left alone for 45 minutes and then told to leave only after there were some potential troublemakers in the oncoming crowd watching the protesters. He believed the police officers were motivated solely by a good faith belief in the prevention of violence or a possible riot. He relied on the Feiner decision, noting there “we upheld a conviction for breach of the peace in a situation no more dangerous than that found here.”
Key to Other Civil Rights Victories
The Court’s decision in Edwards epitomized how the Supreme Court interpreted the First Amendment to protect civil rights demonstrators. The pattern would continue in later cases involving similar demonstrations. The Court followed its decision in Edwards to reverse criminal charges against civil rights leader Ben Elton Cox, who organized a protest in Baton Rouge, Louisiana, in December 1961. Cox and others planned a march to the local courthouse to protest the discriminatory treatment of 23 students from Southern University who were roughed up and arrested for engaging in a sit-in protest. The group assembled at the State capitol and marched toward the courthouse.
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, a 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.
Cox didn’t fare well in the segregated courthouse where the trial judge remarked: “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 high court affirmed his convictions. He then took his case, like the student-protesters in Edwards, to the U.S. Supreme Court. “I was discouraged by losing in the state courts but kept hoping and praying that I would win in the end.”
In a pair of decisions in Cox v. Louisiana (1965), the U.S. Supreme Court reversed his convictions for disturbing the peace, obstruction of public passages and picketing before a courthouse. The Court majority, in an opinion by Justice Arthur Goldberg, found the facts “strikingly similar” to those in Edwards. The state attorneys contended that the 2,000 students may have started out peacefully, their singing and chanting turned their activities into a borderline riotous situation. The high court disagreed: “The singing and cheering do not seem to us to differ significantly from the constitutionally protected activity of the demonstrators in Edwards, who loudly sang “while stamping their feet and clapping their hands.” He concluded that a conviction under these circumstances would “allow persons to be punished merely for peacefully expressing unpopular views” – something that violated the central tenet of the Court’s decision in Edwards. Reflecting on the historic decision in 2007, Cox said: “Freedom of speech and freedom of assembly are what this country is all about. No one should be able to take those constitutional rights from us.”
The Court’s decision in Edwards impacted not only Ben Elton Cox, but also other civil rights leaders who faced similar criminal charges for leading peaceful demonstrations or protest marches. Attorneys for the dynamic and fiery civil rights leader from Birmingham, Alabama – the indomitable Fred Shuttlesworth – relied on Edwards in successfully challenging his conviction for violating an Alabama law prohibiting the conducting of a parade in public without a permit. Birmingham Sheriff Bull Connor and other public officials could use this law to deny individuals like his nemesis Shuttlesworth a license by claiming that the protest would harm “public welfare, safety, health, decency, good order, morals or convenience.” On Good Friday in 1963, Shuttlesworth had led more than 50 people on a peaceful march from his church down city streets in Birmingham to protest racial segregation. Relying on Edwards, the U.S. Supreme Court explained that “our decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection.”
Dick Gregory, the popular comedian and social activist, also benefited from the Edwards ruling. Gregory was one of the leaders of a group of protesters who marched to the mayor’s house to demand desegregation of the public schools. Police officers arrested Gregory and others, charging them with disorderly conduct. In Gregory v. City of Chicago (1969), the U.S. Supreme Court reversed the convictions. Chief Justice Earl Warren began his opinion with the words: “This is a simple case.” He proceeded to explain that a peaceful and orderly segregation-protest march was protected expressive activity under the First Amendment. The Court’s legal authority was Edwards v. South Carolina.
The Edwards ruling helped Harry Brown and four other men prevail in the U.S. Supreme Court for their sit-in at a local public library in Clinton, Louisiana. Members of C.O.R.E, Brown and his colleagues went to Audubon Public Library to protest the library’s whites-only reading room and segregated book-mobile system. They entered and remained in the whites-only reading room for 10-15 minutes. They did not bother anyone or act in a disorderly manner. “They sat and stood in the room, quietly, as monuments of protest against the segregation of the library,” wrote the U.S. Supreme Court in Brown v. Louisiana (1966). Arrested for breach of the peace, the men appealed their convictions all the way to the high court. First Amendment freedoms “embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities,” wrote the high court. Once again, Edwards served as an important legal bulwark.
The principles of Edwards also benefited a black man in New York City named Sidney Street. The former Bronze Star recipient for his bravery during World War II became mightily upset after hearing that civil rights activist James Meredith was shot while conduct a march for voters registration rights in Mississippi. Street burned his American flag on a public street corner, yelling: “We don’t need no damn flag.” When a police officer asked him if he burned the flag, Street admitted it defiantly and boldly. In Street v. New York (1968), the Court cited Edwards for the proposition that the First Amendment prohibits the government from punishing people for the peaceful expression of unpopular views. Citing Edwards again, the Court wrote: “under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
The decision emboldened civil rights protesters of the legal sanctity of their righteous cause. Ben Elton Cox, Fred Shuttlesworth and Dick Gregory may have fared differently if the United States Supreme Court did not have the Edwards ruling at its disposal as a chief legal precedent. First Amendment scholar Harry Kalven explained in his book The Negro and the First Amendment (1965) that “in an open democratic society the streets, the parks and other public facilities are an important facility for public discussion and political process.” He explained that the protests in Edwards and Cox were “structured ceremonials of protest, not riots … that symbolized was a deep grievance, not a break with the society.” Greenberg, for many years a distinguished professor at Columbia Law School, said in a February 2013 e-mail correspondence that Edwards “was as close to a pure speech case as anyone could get.”
Later Prominence for Participants
Some of the actual participants in the Edwards march later achieved great prominence. Two of these were Frederick Hart and James Clyburn. Frederick Hart, the lone white person on the march, was threatened by the Ku Klux Klan for his participation in the civil rights march. He left for Washington D.C. and later became a world- renown sculptor. In 1974 at the age of 31, he won what author Tom Wolfe called “the most monumental commission for religious sculpture in the United States in the twentieth century.” The result was three sculptures on the Washington National Cathedral – “Creation of Day,” “Creation of Night” and “Ex Nihilo.” In his story “the Invisible Artist,” Wolfe wrote that Hart could form “perfectly formed human figures out of stone and clay at will and rapidly.”
Many of his works became famous and inspiring to millions. His bronze statue “The Three Soldiers” adorns the Vietnam Veterans Memorial. Works of Senators Richard Russell and Strom Thurmond are in the U.S. Senate. He presented one of his works, “the Cross of the Millenium,” to Pope John Paul II at the Vatican in 1987. The Pope called Hart’s work “a profound theological statement for our day.” His pieces generated more than $100 million in sales. President George W. Bush posthumously awarded him the National Medal of Arts in 2004.
James Clyburn graduated from college at South Carolina State. Upon graduation, he taught high school. He later worked in state government, including for many years as the head of the state’s human rights commission. He left that position in 1992 to run for a seat in the U.S. House of Representatives. He first won his House seat in 1993 and he has remained a constant in the Democratic Party House leadership ever since. At the time of this writing, Clymer serves as the Assistant Democratic Party Leader of the House – the third-ranking Democrat in the entire congressional body. President Barack Obama described Clyburn: “One of a handful of people who, when they speak, the entire Congress listens.” “I will always wear those arrests as a badge of honor,” Clyburn says. “We knew what we were doing was right and we had the courage of our convictions.” He should wear it as a badge of honor, because they helped galvanize positive social change in the United States of America. In the process, they also helped establish a stirring free-expression precedent.
Another participant achieved great prominence – attorney Matthew J. Perry. He unsuccessfully ran for the U.S. Congress in the 1970s, but in 1976, President Gerald R. Ford appointed him to the U.S. Military Court of Appeals. Three years later, President Jimmy Carter appointed him to the U.S. District Court for the District of South Carolina. He served as a federal district court for more than 32 years. Litigants, lawyers and fellow jurists attested to Perry’s excellence as a judge. “Aristotle taught that judges should be the very personification of justice,” wrote his judicial colleague Joseph F. Anderson in a tribute piece. “Matthew J. Perry Jr. came as close to any person I have known to meeting Aristotle’s ideal.” Clyburn recalled his former attorney and hero in similarly glowing terms: “This legend, this trailblazer saw himself as nothing more than a man of the people standing up for justice and equality.” Perhaps the most fitting tribute to Matthew J. Perry came from an official act of the South Carolina government in naming the state courthouse in Columbia the Matthew J. Perry, Jr. Courthouse.
The U.S. Supreme Court got it right in Edwards by recognizing that these civil rights demonstrators exercised their First Amendment freedoms of speech, assembly and petition “in their most pristine and classic form.” This historic free-assembly victory should be celebrated by all who care about the First Amendment, justice, and equality.