Civil Rights & First Amendment

by David L. Hudson Jr., First Amendment Scholar

September 16, 2002

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 and Selma, Ala., and other cities throughout the South to force society to improve the treatment of African-Americans.

“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.

“The civil rights movement featured various forms of free expression,” University of Columbia law professor Jack Greenberg said in an interview in 1999.

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.

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 movement itself also 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, “We may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us,” a reference to civil liberties sacrificed during the anticommunist “red scare” era of the 1950s and early ‘60s.

First Amendment expert Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said 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 persuading 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.

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 numerous court decisions across the country sided with civil rights protesters who challenged parade ordinances. The ordinances vested too much power 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.”

Saying the “circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form,” the Court 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 First Amendment-related Supreme Court decisions stemmed from events during the civil rights movement. Among these cases O’Neil lists NAACP v. Alabama (1958), which protected the free-association rights of NAACP members from official harassment, and NAACP v. Button (1963),which ensured access to courts and protected the associational freedoms of public-interest groups.

In NAACP v. Alabama, state officials demanded the names and addresses of all the members of the National Association for the Advancement of Colored People of Alabama. But the Supreme Court 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.”

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

Five years later, in NAACP v. Button  the Supreme Court ruled that the NAACP had the right to refer individuals who wanted to sue in public school desegregation cases to lawyers and to pay their litigation expenses. (This case also relates to the First Amendment freedom of petition, and is covered in that section.)

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.”

Greenberg called Button “extraordinarily important” because it represented the beginning of the public-interest law firm.

It is also worth noting, though it did not involve freedom of assembly, that another landmark First Amendment-related case, New York Times Co. v. Sullivan, grew out of the civil rights movement. That 1964 case bolstering press freedom is discussed in the press section.

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.

The Supreme Court in these various rulings strengthened people’s right to assemble peaceably — as well as to speak out and petition government — in protest against injustices.