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Percy Julian, First Amendment lawyer, dies

By David L. Hudson Jr.
First Amendment scholar

The legal community — particularly the First Amendment field — lost a giant recently in Wisconsin-based civil rights attorney Percy L. Julian Jr., who died Feb. 24 in Madison at age 67.

Whether battling segregation laws, defending Vietnam-era student protesters, protecting the rights of members of the Student Nonviolent Coordinating Committee, representing adult bookstores or guarding prisoners’ religious freedom, Julian never shied away from using his legal skills to advocate for the downtrodden, the underdog, the unpopular or the oppressed.

“He taught me that everybody flies first class,” said Jeff Scott Olson, Julian’s former law partner, who practices First Amendment law. “He taught me that when you represent the poorest person in town, you give them the same first-class treatment that you give the best, long-term paying clients.”

A former president of the First Amendment Lawyers Association, Julian was a top-notch litigator, an expert on attorney fees and a dedicated defender of the Bill of Rights.

“Percy was a true civil rights fighter,” said Louis Sirkin, a Cincinnati-based attorney of First Amendment renown. “He was truly a great advocate, a great lawyer, a great friend and an absolute gentleman.”

Born in Chicago, Julian was part of the first African-American family to live in the previously all-white community of Oak Park, Ill. His father, Percy Sr., was a pathfinding chemist whose life and work were dramatized in the documentary film “Forgotten Genius.” Percy Jr. obtained his undergraduate degree from Oberlin College in 1962 and his law degree from the University of Wisconsin in 1966.

“Percy was on top of cutting-edge legal theories in the First Amendment area early in his career,” said Olson, who argued City News & Novelty v. City of Waukesha (2001) before the U.S. Supreme Court. “Near the end of it, he was a model of the value of leaving no stone unturned, no effort un-exerted, and of never giving up. He wore down his opponents through a combination of sweetness and charm in one hand and mountains of novel legal work in the other.”

First Amendment victories
Julian tackled a variety of First Amendment challenges in his stellar career.

In Soglin v. Kauffman (D. Wis. 1968), he successfully challenged the suspension of several student protesters at the University of Wisconsin, Madison, for alleged “misconduct” — a vague, overly broad term. Julian successfully convinced the federal district court that the university’s disciplinary rule was both too vague and too broad to withstand First Amendment scrutiny.

“The vagueness doctrine is not to be conceived as being limited solely to the concept of fair notice as an element of substantive due process,” the court wrote. “The vagueness doctrine embodies a First Amendment concept as well.” The court also determined that the school’s “misconduct” standard was far too broad: “With so grossly broad a standard as ‘misconduct’, one need not strain to hypothesize applications … which would demonstrate that the standard ‘sweeps within its broad scope activities that are constitutionally protected free speech and assembly.’”

Like many of his colleagues in the First Amendment Lawyers Association, Julian regularly defended clients in the adult-entertainment world from a never-ending stream of zoning, licensing and other regulatory measures seemingly designed (in part, at least) to silence unpopular expression.

In Exotic World News v. City of Appleton (E.D. Wis. 1980), he successfully challenged a city ordinance that gave city officials unfettered discretion to deny licenses to adult businesses. His client, an adult bookstore, could not obtain a license for coin-operated machines that would show adult movies. “The protection of the first amendment extends not only to movies shown in public theatres, but also to movies shown in coin-operated machines accessible to the public,” the federal judge wrote.

Similarly, he and Olson challenged another Wisconsin town’s efforts to amend its zoning laws in such a manner as to ban such businesses from operating anywhere within town limits. The Wisconsin Court of Appeals in Town of Wayne v. Bishop (Wis. App. 1997) ruled against the town and for Julian’s clients, writing: “It [the town] did not set aside any area where adult bookstores could lawfully operate and thereby manipulated its whole scheme of zoning and building occupancy codes to achieve an impermissible total ban on the distribution of adult-oriented, expressive materials.”

He represented Sylvester Sasnett and other inmates who alleged that a prison rule prohibiting inmates from wearing crosses violated their religious freedom. The Wisconsin prison regulation allowed Catholic inmates to wear crosses when attached to rosary beads but would not allow others to wear crosses. Julian convinced a panel of the 7th U.S. Circuit Court of Appeals in Sasnett v. Litscher (1999) that this regulation constituted a flagrant affront to the First Amendment.

In colorful language, eminent jurist Richard Posner wrote: “One might as well tell Anglicans to kiss the Pope’s ring but pretend he’s the Archbishop of Canterbury. The Wisconsin prison system, without the ghost of a reason, has decided to discriminate against Protestants, and in doing so it has violated the First Amendment and must be enjoined.”

Colleagues' reflections
Julian’s contributions to the legal profession extended far beyond his challenge of discriminatory laws and arbitrary government actions. He served as a mentor and guide to many a fellow member of the bar. He regularly lectured on attorney fees to his colleagues in the First Amendment Lawyers Association.

Olson called Julian “a path-breaking civil rights lawyer and beloved mentor.”

Sirkin, who successfully challenged provisions of the Child Pornography Prevention Act of 1996 in Ashcroft v. Free Speech Coalition (2002), called Julian a “guru” on federal civil procedure and attorney-fee issues. “He was a mentor to all of us on the question of attorney fees,” he said.

“Percy was a very dedicated and ethical attorney,” says Chicago-based attorney Wayne Giampietro, who argued Gertz v. Welch (1974) before the U.S. Supreme Court. “He gave several presentations to the First Amendment Lawyers Association on the issues of attorney fees in connection with civil rights cases and the like. He was intelligent and principled. He was always ready to help out the organization itself as well as individual members of the group. Percy loved the law and was proud to be an attorney. That showed in his dedication to the matters he handled as an attorney. We will miss him greatly.”


Attorney, pursuing First Amendment passion, defends obscenity cases

By David L. Hudson Jr. 'Censorship is like cancer; in fact, it spreads faster than cancer,' says Cincinnati attorney H. Louis Sirkin. 01.06.99

Ruling against expression is no music to inmates’ ears
By David L. Hudson Jr. 3rd Circuit defers to Pennsylvania prison officials's claims that allowing inmates to play in independent bands posed security risk. 07.23.08

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