Page 21 - Delaware Lawyer - Fall 2019

rights advocate for the proposition that robust equal rights for all depend on ro- bust freedom of speech for all: Harvard Law School Professor Randall Kennedy. His recent writings remind us that the 20th-century movement for racial justice depended on strong protection of stu- dents’ free speech rights, shielding ideas that were widely viewed as deeply dam- aging to individuals and society. Kenne- dy wrote, “[I]n order to more militantly battle Jim Crow segregation, black high school and college student activists...initi- ated the lawsuits that prompted judges to recognize students’...constitutional rights to free speech.” He also has observed that “ardent champions of racial justice have typically been ardent champions of civil liberties,” recognizing the symbiotic rela- tionship between the two.
This insight certainly was true of the Supreme Court Justice for whom Randy Kennedy clerked — Thurgood Marshall, who was often called “Mr. Civil Rights.” In addition to serving as the NAACP
leader who argued Brown v. Board of Edu- cation in the Supreme Court, Thurgood Marshall also served on the ACLU Na- tional Board of Directors. And in addition to writing Supreme Court opinions in major civil rights cases, he also wrote the Court’s opinions in major First Amend- ment cases. As Professor Kennedy wrote, in a very kind review of my book, Justice Marshall earned the title “Mr. Civil Lib- erties” to complement that of “Mr. Civil Rights.”
I end with a passage from a poem by Edwin Markham, which was included in the Norton Anthology of American Litera- ture, required reading for my 10th grade English course at my public high school in Hopkins, Minnesota. This was also the poem that Pauli Murray paraphrased in her stirring article that I quoted above. It has special personal resonance for me, for in high school I was being painfully ostracized by certain important people in my school and my community, due to my Jewish background and my unpopular
beliefs and expression. Markham’s poem provided great solace, and no doubt helped to launch me on the path toward human rights work. More recently, this poem has epitomized for me the most promising — non-censorial — means for resisting “hate.” In his poem “Outwit- ted,” Markham wrote:
He drew a circle that shut me out— Heretic, rebel, a thing to flout.
But Love and I had the wit to win: We drew a circle that took him in!5
NOTES
1. Nat Hentoff, Free Speech for Me but Not for
Thee (New York: Harper Collins 1992).
2. Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979).
3. See Peter Salovey, “Free Speech, Personified,” New York Times, November
26, 2017, available at: https://www.nytimes. com/2017/11/26/opinion/free-speech-yale- civil-rights.html
4. https://www.thehoya.com/norton-calls- graduates-defend-first-amendment-rights-law- center-commencement-address
5. http://holyjoe.org/poetry/markham.htm
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