The First Amendment and the Civil Rights Movement: How First Amendment History Shapes Our Present and Future

An Encapsulated Legal History of the Civil Rights Movement from 1955-1965 & The Seminal Opinions of
Judge Frank Johnson, Jr.

Robert D. Bickel,
Professor Emeritus, Stetson University
&
Gene Policinski,
Senior Fellow for The First Amendment, The Freedom Forum

INTRODUCTION

““The only weapon that we have in our hands this evening is the weapon of protest.””
— Dr. Martin Luther King, Jr., Montgomery, Alabama, December 5, 1955
C.T. Vivian

C.T. Vivian

This encapsulated legal history of the Civil Rights Movement was conceived and is presented for college and university professors, undergraduate students, graduate students, law students, judges, and practitioners in law, and all related social science disciplines, and all citizens concerned about social justice. Our purpose is to facilitate the understanding and appreciation of the inherent interdependence between The First Amendment, the Fourteenth and Fifteenth Amendments and the substantive constitutional principles of civil, political, and social equality that were the basis for The Civil Rights Movement, and its timeless legacy. It is the story of a legal history captured in the opinions of a select group of special cases along with video interviews of the people who were the direct subject of those cases, as significant participants in the Legal History, and in the Direct Action Campaign for Civil Rights.

Arlam Carr

Arlam Carr

The First Amendment’s freedoms and protections empowered the essence of nonviolent mass protest, and the right to petition the government for the redress of the grievances of citizens who were denied the basic promise of democracy, based on their race. But beyond their time, and into our future, the mass protests for civil rights, especially between 1955 and 1965, and the southern opposition to the fundamental mandates of Brown v. Board of Education present a legal and social history that holds lessons related to every major issue of social and economic injustice that affects those who, in the words of Robert F. Kennedy, “still suffer within our country.”

The relationship between Constitutional Law and The Civil Rights Movement is the subject of the most significant judicial decisions in American legal history. But, as John Dewey observed in 1938, knowledge of the past cannot be an end in itself; we must make acquaintance with the past a means of understanding the present. That connection is presented here in a five part legal history of the Civil Rights Movement that combines the interpretation of essential Movement jurisprudence with video interviews of carefully selected actual Movement veterans who shaped this legal history.

The readings and interviews are not meant to be simply an archive. Rather, inspired by Professor Derrick Bell’s belief in using storytelling to present a storied history, the interviews related to this text individually reflect distinct aspects of the Movement, and collectively reveal the way prominent and ordinary people together shaped legal and social history in just Thirteen years. In this way, it is our goal to explain the story behind the jurisprudence that connected The First, Fourteenth and Fifteenth Amendments with the substantive rights at stake, and to reveal the template upon which future efforts to sustain and advance a true and honest democracy must be based. Each story is compelling in itself, and together they bring law and direct social action together to facilitate our understanding of our past, our present and our future.

We believe this approach to the presentation of the subject will allow this history to become personal and transformative, thereby shaping more effectively our approach to current and future social justice issues and initiatives for students and practitioners who serve in, or who are preparing for, a special position to influence civic responsibility and community engagement in ways that advance the principle of equality, through both legal advocacy and direct social and political leadership at all levels of our society.

PREFACE

In 1967, even after President Lyndon Baines Johnson had signed the monumental 1964 Civil Rights Act and the 1965 Voting Rights Act, which were the subject of contentious debate about race and the rights of citizens under the Fourteenth and Fifteenth Amendments, he appointed a 12 member national Commission, chaired by Governor Otto Kerner of Illinois, to examine the troubling situation that challenged our democracy, as an institution, and our society. In 1967, that issue, which had been the raison d'être of the Civil Rights Movement, was ongoing racial inequality and racial injustice. It is noteworthy that the Commission included not only U.S. senators and representatives, but leaders of private industry & commerce, unions, and police chiefs in America. In February 1968, the Commission wrote:

" Our nation is moving toward two societies, one black, one white--separate and unequal." * * * “White society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”

But the Commission reminded us in 1968 that America's deepening racial division was not inevitable. The Commission wrote: "The movement apart can be reversed. Choice is still possible *** It is the realization of common opportunities for all within a single society. This alternative will require a commitment to national action – compassionate, massive and sustained, backed by the resources of the most powerful and the richest nation on this earth. From every American it will require new attitudes, new understanding, and, above all, new will."

This Freedom Forum project was conceived and produced because this challenge, to shape "new attitudes, new understanding, and, above all, new will" must be the work of students and faculty in higher education, every person involved in civic leadership, whether in politics per se, or in any community initiative, and any person in any position of corporate leadership — indeed anyone who can identify themselves with any aspect of civic responsibility.

The first step in our effort to create "new attitudes, new understanding, and, above all, new will" is to recognize that at no time since the 1960s has the Civil Rights Movement and The First Amendment that enabled it, taken center stage as the history we must study in shaping a template that will guide our destiny as an inclusive democracy. 

In 1967, the year President Johnson established The Kerner Commission, Robert Kennedy wrote, in the last paragraph of a book that is a part of his legacy:

“Our future may lie beyond our vision, but it is not completely beyond our control. It is the shaping impulse of America that neither fate, nor nature, nor the irresistible tides of history, but the work of our own hands, matched to reason and principle, that will determine destiny. There is pride in that, even arrogance, but there is also experience and truth. In any event, it is the only way we can live.” This encapsulated legal history and the videos that accompany it are designed to facilitate an efficient yet comprehensive study of the Movement, and reveal the essential message of its legacy, so that we may overcome all of the factors that make us a divided society, and reawaken all of the aspects of The Civil Rights Movement’s success, so that we may become a nation of reasoned compromise, with a commitment to the common good.

(A PDF of this document is available here.)

John Seigenthaler Interview

A former president of the American Society of Newspaper Editors, John Seigenthaler served for 43 years as an award-winning journalist for The Tennessean, Nashville’s morning newspaper. John Seigenthaler left journalism briefly in 1960 to serve for 2 years in the United States Justice Department as Assistant to Attorney General Robert F. Kennedy. He served as chief negotiator on behalf of Attorney General Kennedy with Governor John Patterson of Alabama during the Freedom Rides. Mr. Seigenthaler later served on the 18-member National Commission on Federal Election Reform organized in 2001. He was also a member of the Constitution Project on Liberty and Security, created after the September 11 tragedies in New York and Washington. In 2002, the trustees of Vanderbilt University created the John Seigenthaler Center, which houses the offices of the Freedom Forum, the First Amendment Center, and the Diversity Institute. The interview with Mr. Seigenthaler explores his early involvement with the Movement as a journalist, and his experience with southern politics and popular southern resistance to racial equality, while serving the Kennedy White House and Justice Department. 

Interview Subject Biogrpahies

  • When he was in the 8th grade, Arlam Carr was the nominal plaintiff in the landmark case of Carr v. Montgomery County Board of Education. Moving beyond the threshold issues that defined Cooper v. Aaron, the Carr case directly confronted the “all deliberate speed” language of the Supreme Court’s second decision in Brown v. Board of Education. The Carr case would become a seminal case in federal jurisprudence, and remains a study in the role of federal judges who experienced the reality of enforcing Brown’s holding that southern school districts had an affirmative duty to establish and implement plans for the desegregation of public schools. In June of 2011, we had the opportunity to sit with Arlam Carr, then a member of the news department staff at WSFA Television in Montgomery. We visited about his parents’ decision to file the case, Judge Johnson’s orders, and the meaning of the case for himself, his peers, and the effort to end state-enforced or de facto racial segregation in Alabama’s public schools.

  • Armand Derfner was born in 1938 in Paris, France. He earned his undergraduate degree from Princeton University in 1960, and was a recipient of a Woodrow Wilson Fellowship. He then earned his LL.B. degree from Yale Law School, where he was an editor of the Yale Law Journal, and a member of Order of the Coif. Mr. Derfner served the Lawyers Constitutional Defense Committee, in its work in Jackson, Mississippi in 1968-1970, and the Lawyers Committee for Civil Rights Under Law, in Washington, DC from 1971 – 1974. He has also served the Joint Center for Political Studies in Washington, and as a visiting Professor of Law at American University. Mr. Derfner’s writings include: “Racial Discrimination and the Right to Vote,” published in 1974 in the Vanderbilt Law Review; and “Development of the Franchise: 1957-1980, VOTING RIGHTS IN AMERICA” published in 1992.

    Mr. Derfner repeatedly testified before committees of the United States Senate and House of Representative between 1967 and 2009, and was directly involved in the 1982 Amendments to the Voting Rights Act.

    In the courtroom, Mr. Derfner was in the front lines of the legal history of voting rights, as a part of the legendary legal teams that included Jack Greenberg, Joseph Rauh, Jr., Nicholas Katzenbach, John Doar and others who were the seminal legal advocates for voting rights – dealing with the integrity of the voting process and redistricting. He argued, or was a member of the legal teams that briefed and/or argued most of the seminal cases interpreting and applying the critical sections of the Voting Rights Act, including Allen v. State Board of Elections; Perkins v. Matthews; City of Petersburg, Virginia v. United States; City of Richmond v. United States; Blanding v. DuBose; McCain v. Lybrand; and NAACP v. Hampton County Elections Commission, before the federal three judge courts and the United States Supreme Court.

    He is a leading advocate for the direct connection between The First Amendment and the right to vote, and explains the relationship between U.S. v. Louisiana and Williams v. Wallace, in securing The Voting Rights Act – as well as the period of the weakening of the right to vote in both U.S. Supreme Court jurisprudence and state level redistricting and annexation.

  • Martin Firestone was a central figure in Office of Communication of the United Church of Christ v. The Federal Communications Commission, a case that is the subject of Kay Mills’ book, “Changing Channels: The Civil Rights Case That Transformed Television.” Martin Firestone’s legal career included service as a member of the FCC’s legal staff – and that experience gave him a unique perspective as he later assumed the legal representation of Civic Communications Corporation, a group which not only opposed the renewal of the FCC license held by WLBT television in Jackson, Mississippi, but challenged WLBT for the license. The case would became the most important test of the “Fairness Doctrine” and the right of citizens to participate in the process that required television stations licensed by the FCC to honestly represent the public interest – during the campaign for civil rights in the 1960’s.

  • At age sixteen, Janice Kelsey was introduced to her first “mass meeting” in the Birmingham Movement in 1963, and she remembers personally being in the audience and hearing Martin Luther King, Rev. Fred Shuttlesworth and Rev. James Bevel. In this interview, she tells the story of the participation of secondary school students in the peaceful mass protests against school segregation. The “children’s crusade” became a defining aspect of the success of the direct action campaign in Birmingham. Janice Kelsey went on to a 33-year career in education, as a middle school and high school science teacher in the Birmingham School System, and as Principal of two elementary schools, and her interview is a first person account of the impact of segregation in public schools, and the legacy of that experience.

  • David and Winonah Beamer Meyers tell the unique story of two white college students who came to the Movement because of a nontraditional higher education experience, deeply shared views of the personal responsibility to support the struggle for racial equality, and the belief that every citizen should demand that government live up to the principles of equality embodied in the Constitution. In this interview, they recall the experiences and lessons of the Civil Rights Movement through a unique lens, which challenges traditional assumptions and perspectives about race, and explain why we should see social justice as based in classic philosophy. Their story is unique in its message of the connection between a liberal arts higher education, a unique racial experience, and the perceived necessity to personally challenge injustice when federal constitutional rights are ignored or violated by a state judicial culture that is complicit in mob violence based on racial hatred.

  • Rip Patton was a student at Tennessee State University when he joined The Student Nonviolent Coordinating Committee (SNCC) in 1960, participating in the Lawson Nonviolence Workshops, the Nashville sit-ins and other protests of segregation in Nashville. He joined the Freedom Rides in 1961 and was in the first group to make it to Jackson, Mississippi, where he was arrested for entering a “white only” Greyhound Bus Station waiting room. His group also included John Lewis, Hank Thomas, and James Farmer. The group was ultimately sent to Parchman Penitentiary. He knew Dr. King, Fred Shuttlesworth and C.T. Vivian and recalls the full range of stories that defined the Civil Rights Movement. In this interview, Mr. Patton tells, in his own words, the typical story of Movement veterans, including childhood memories of racial segregation, the decision to join the Civil Rights Movement, and the personal encounter with southern resistance and southern state laws that resisted Brown’s mandate under the “guise” of a pre-civil war interpretation of state’s rights.

  • Solomon “Sol” Seay, Jr. is an Alabama native who graduated from Howard Law School and dedicated his life to the practice of civil rights law, beginning in 1957 in Montgomery. His father, Solomon Seay, Sr. was a legendary minister and mentor to Dr. King, and his guidance influenced Sol Seay’s passion to use the law to seek true justice in a Jim Crow south. His cases include Lee v. Macon County Board of Education and Carr v. Montgomery County Board of Education (1968) and dozens of other cases that illustrate the seminal legal history shaped by the few local black attorneys who were at center stage in the efforts to overturn the legacy of racial discrimination. Solomon Seay, Jr. stands beside Thurgood Marshall, Constance Baker Motley, Jack Greenberg, Spottswood Robinson, Arthur Kinoy, Arthur Shores, Z. Alexander Looby, Clifford Durr and Fred Gray as one of America’s quintessential civil rights lawyers. His book, “Jim Crow and Me” (written with Delores Boyd) is, as the great John Hope Franklin says, a book written about a lawyer who had “a special prism” through which to view the momentous events of the Civil Rights Movement – and who fought Jim Crow wherever he found it.

  • A former president of the American Society of Newspaper Editors, John Seigenthaler served for 43 years as an award-winning journalist for The Tennessean, Nashville’s morning newspaper. John Seigenthaler left journalism briefly in the early 1960’s to serve for 2 years in the United States Justice Department as assistant to Attorney General Robert F. Kennedy. He served as chief negotiator on behalf of Attorney General Kennedy with Governor John Patterson of Alabama during the Freedom Rides. While attempting to aid Freedom Riders who were being attacked by white mobs at the Montgomery Greyhound bus station, he was himself attacked by the mob and hospitalized with serious injuries.

    Mr. Seigenthaler served on the 18-member National Commission on Federal Election Reform organized in 2001 by former Presidents Carter and Ford. He was a member of the Constitution Project on Liberty and Security, created after the September 11 tragedies in New York and Washington. In 2002, the trustees of Vanderbilt University created the John Seigenthaler Center, which houses the offices of the Freedom Forum, the First Amendment Center, and the Diversity Institute. The interview with Mr. Seigenthaler explores his early involvement with the Movement as a journalist, and his experience with southern politics and popular southern resistance to racial equality, from the perspective of the Kennedy White House and Justice Department.

  • Reverend C. T. Vivian is one of the principal figures of the Civil Rights Movement, known not simply for his leadership, but for his pioneering sit-in efforts, and his courage during the 1961 freedom rides and 1965 voting rights efforts in Selma, Alabama. Before his work with Dr. Martin Luther King, Jr., and his seminal role in SCLC, Reverend Vivian had participated with James Farmer in CORE’s direct action campaigns against segregation in Chicago and Peoria, Illinois, almost a decade before the 1955 Montgomery Bus Boycott. Featured in the PBS account of the Movement in Eyes on the Prize, C.T. Vivian’s tireless presence on the front lines of the direct action campaigns against segregation spanned three decades.

    In this brief but powerful interview, he explains the connection between law and direct action efforts to overcome racial inequality, the experiences with cultural racism in the northern civil rights campaign, and with Jim Crow laws in the more popularly studied southern civil rights movement. His commentary is especially important to the current discourse about Constitutional theory, and provides a unique opportunity to emphasize the moral premise of the Fourteenth Amendment and thus the continuing importance of the role of law in advancing the principle of equality identified with Brown v. Board, and what we mean by social justice.

Author Biographies

Professor Emeritus Robert Bickel

Professor Bickel has been a member of the faculty of Stetson University for more than 35 years. Professor Bickel’s interest in the Civil Rights Movement began in college in 1960 and included the involvement of students in protests against the racial segregation of higher education, and the summary retaliation against students for their participation in Civil Rights Movement activities. Professor Bickel earned his J.D. Degree, with highest honors, from Florida State University in 1968. In 1975, while serving as General Counsel for the University, he completed the summer Institute for Educational Management program at Harvard University. In 1965 and 1966, he worked with the first training programs created under the Manpower Development and Training Act of 1965, signed into law by President Lyndon Johnson.

Professor Bickel has taught and written extensively on the subject of Constitutional Law and Civil Rights History, The First Amendment, and Employment Discrimination Law. He is a recipient of the American Bar Association’s National Award for Continuing Education and has served as an elected member of The American Law Institute. His many published articles and papers include the judicial failure to recognize the duty of states and the federal government to remedy the present effects of historical racial discrimination. In 2006, Professor Bickel created a travel course which allowed students to travel to major cities identified with the Civil Rights Movement, including Montgomery, Nashville, Birmingham, Selma, Memphis, and Atlanta to meet with Movement veterans and learn this history through first-hand storytelling, an approach to learning championed by Professor Derrick Bell.

Gene Policinski

Mr. Policinski is Senior Fellow for the First Amendment for the Freedom Forum, where he contributes to the weekly “First Five” commentary on First Amendment issues, responds to news media inquiries and participates in the wide spectrum of Freedom Forum programs.

One of the founding editors of USA Today, he is a veteran of a 27 year career in journalism, including Gannett Co., Inc. A longtime proponent of diversity as an essential element of a free press, he is a member of the board of directors of "Journalisms," a regular news column on diversity in the news media. As a veteran multimedia journalist, he writes, lectures and is interviewed regularly on the news media and current First Amendment issues. His archived and latest posts may be found on the web site of The Freedom Forum.

Author Credits

The readings/texts were the result of a collaboration between Professor Robert D. Bickel of Stetson University, and Gene Policinski, Senior Fellow for The First Amendment at The Freedom Forum, with the significant support of The Freedom Forum. Professor Bickel devised, composed, directed, and conducted all of the interviews in this project, with the support of Stetson University. We especially thank those whom we interviewed and whose biographies are included, for their roles and courage in the Movement story, and their presenting of their experiences and perspective in a way that empowers the Movement’s influence on every aspect of current and future efforts to sustain and advance equal justice – by seeing the present and future of justice in its roots. It is they who give us our own courage, resolve and strategy so that we may be advocates and activists in the ongoing struggle for justice.

Tammy Briant Spratling taught the subject of Civil Rights Movement history with Professor Bickel and is now the CEO of Community Tampa Bay. She deserves special thanks for her knowledge of transformative learning theory and her preparation of students for our method of combining readings, film, and travel to historic places to meet Movement veterans.

Professor Greg Sapp collaborated with Professor Bickel through countless discussions of the subject of Movement history and taught this history to countless undergraduate students from varied academic disciplines at Stetson University.

Stan Arthur of Stetson University, a brilliant film maker, who was behind the camera for all of the interviews, and performed, under Professor Bickel’s direction, all of the technical editing during countless hours of their work together in studio, is also a film maker devoted to the people we met and filmed, and their courage – and who wanted to tell their story.

Johnson Institute Credits

The Johnson Institute thanks Professor Robert Bickel and Mr. Gene Polocinski for their work creating “The First Amendment and the Civil Rights Movement” and entrusting it to the Johnson Institute. Additionally, the Johnson Institute thanks and acknowledges the Freedom Forum Institute’s role in supporting the creation of the texts and videos.