Back to document

MLK Day: A time to celebrate the First Amendment

By David Hudson
The Freedom Forum Online

01.12.01

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 despise.

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 grievances.

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. Sullivan.

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 officials.

"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 movement."

"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 said.

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 cases:

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.