Page 20 - Delaware Lawyer - Fall 2019

FEATURE
many people are surprised to learn of the following statement, from his book about the Skokie case:
I am unwilling to put anything, even love of free speech, ahead of detesta- tion of the Nazis...I could not bring myself to advocate freedom of speech in Skokie if I did not believe that the chances are best for preventing a rep- etition of the Holocaust in a society where every incursion on freedom is resisted. Freedom has its risks. Sup- pression of freedom, I believe, is a sure prescription for disaster.
Supporting the same conclusion, I would also like to quote another former ACLU leader: the remarkable human rights hero Pauli Murray, who was an in- fluential member of the ACLU’s National Board of Directors during the mid-20th century.
Until recently Murray’s pioneering life and work weren’t nearly as well-known as they should be, so I’m glad that a couple of biographies have documented her achievements, and that Yale recently named a residential college after her. Mur- ray was a prominent human rights activist and lawyer, who was also a published poet and an Episcopal priest.
Murray was the granddaughter of an enslaved woman. She transcended con- ventional boundaries of gender and sex- ual orientation, long before there were organized movements for LGBTQ and/ or gender identity rights.
While Murray was pursuing her doc- torate in jurisprudence at Yale, in 1963, Yale’s student-run debate organization, the Yale Political Union, extended a speaking invitation to an arch-segrega- tionist, Alabama Governor George Wal- lace. To add fuel to the fire of this contro- versial invitation, just a few weeks earlier, Klansmen had bombed the 16th Street Baptist Church in Birmingham, Alabama, killing four African American schoolgirls and wounding 22 others.
Under these circumstances, Yale’s Act- ing President, Kingman Brewster, advised the students to withdraw their invitation. But Pauli Murray wrote an eloquent letter to Brewster arguing that Wallace should have a platform at Yale. Murray made this argument not despite her civil rights activ-
ism, but rather directly because of it. As she wrote:
This controversy affects me in a dual sense, for I am both a lawyer commit- ted to civil rights including civil lib- erties and a Negro who has suffered from the evils of racial segregation... The possibility of violence is not suf- ficient reason. . . to prevent an individ- ual from exercising his constitutional right[s]. This has been the principle behind the enforcement of the rights of the Little Rock Nine...and others to attend desegregated schools in the face of a hostile community and threats of violence. It must operate equally in the case of Governor Wallace.3
Further on this essential theme of the indivisibility of human rights, Murray wrote the following in a 1945 magazine article, from her perspective as a young civil rights lawyer and activist:
I intend to destroy segregation by posi- tive and embracing methods. When my brothers try to draw a circle to exclude me, I shall draw a larger circle to in- clude them. Where they speak out for the privileges of a puny group, I shall shout for the rights of all mankind.
‘The Ultimate Client Was the First Amendment Itself’
On this same theme, I would like to quote recent comments by another remark- able African American woman lawyer who was also an ACLU leader, and who also championed free speech rights even for the odious racist views of Alabama Governor George Wallace, among others — namely, Eleanor Holmes Norton. Eleanor has for many years been the District of Colum- bia representative in Congress, and before that, she was the first African American woman to head the federal Equal Employ- ment Opportunity Commission. Eleanor began her illustrious career as a lawyer in the ACLU’s national Legal Department. In that capacity, she defended free speech rights for Wallace, when New York’s May- or John Lindsay denied him a permit to speak at Shea Stadium.
Eleanor also defended freedom of speech for other racists, including Clar- ence Brandenburg, the Ohio KKK leader at the heart of the landmark 1969 Su- preme Court case, Brandenburg v. Ohio.
That was an ACLU case, and Eleanor was on the brief.
The immediate beneficiaries of the Court’s historic speech-protective ruling were Brandenburg and other hooded, cross-burning racists. But that ruling soon came to the aid of speech from dia- metrically different activists, including the NAACP and its leaders. Eleanor recently said the following about her work on these ACLU cases: “My direct clients were... proselytizing racists with whom I had nothing in common. Yet...the ultimate client was the First Amendment itself.”
Last year, Eleanor delivered the com- mencement address at Georgetown Law School. In light of current questions by students and others about whether racial justice and other progressive change can still best be promoted by neutrally de- fending free speech even for opponents of such change, she emphatically answered “yes.” Moreover, she urged law students and young lawyers in particular to convey that message to other young activists, giv- en “disquieting evidence” that too many of them don’t support freedom for ideas they reject. Let me quote her:
Given our...increasingly polarized country, [positive] [c]hange will only occur if we make the highest, best and most peaceful use of the First Amend- ment.... Will the generation that is us- ing protest so precociously for issues they favor..., also exercise the toler- ance that allows those who favor the opposite side to be heard?...[Your] education equips [you] to explain in terms [your] generation can under- stand that the First Amendment right to speak must be reciprocal. Those who have brought [positive] change to our country did not win it by shutting down the other side. They won change the hard [way, which is the] only way that ensures it will be lasting.... [A]s you learn in law school, lawyers sharp- en their own cases best when they have heard the other side. And we all know that allowing the other side to speak...earns respect from the public, the actual party we need to accept the change we are after.4
Before I conclude, let me cite just one more respected law professor and civil
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