African-Americans have contributed mightily to the cause of the First Amendment for many years. Many fundamental First Amendment freedoms were forged during the era of the civil rights movement in the 1950s and 1960s. Law professor Harry Kalven Jr., in his book The Negro and the 1st Amendment, wrote: “We may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us.”
The civil rights era bolstered First Amendment jurisprudence, producing many historic decisions. These included New York Times Co. v. Sullivan (1964), which protected civil rights activists and the media from chilling libel suits, NAACP v. Alabama (1958), which protected the free-association rights of National Association for the Advancement of Colored People members from official harassment, and NAACP v. Button (1963), which ensured access to courts and protected public-interest groups’ freedom to associate.
Countless African-Americans have fought for First Amendment freedoms in the civil rights era and other periods. Examples include Fred Shuttlesworth, Alton Lemon, Ishmael Jaffree and Anthony Griffin.
Among his herculean efforts during the civil rights era, Fred Shuttlesworth battled Birmingham, Ala., city officials over the right to lead a protest march. Alton Lemon challenged a Pennsylvania law that provided state aid to religious schools. Ishmael Jaffree fought practices in the Mobile, Ala., public schools that included teacher-led prayer. Anthony Griffin epitomized devotion to the First Amendment by representing unpopular clients and causes.
Fred Shuttlesworth suffered physical attacks on his body and home for his devotion to the cause of civil rights in Alabama. Anyone who visits the Birmingham Civil Rights Institute will understand the numerous sacrifices and contributions he made — often at risk to his own safety.
In April 1963, Shuttlesworth, Dr. Martin Luther King Jr. and Ralph Abernathy, led a march of more than 50 people down the streets of Birmingham to peacefully protest the denial of civil rights to African-Americans. Shuttlesworth was charged with violating an ordinance making it unlawful to parade or picket without first obtaining a license from city officials. A trial judge sentenced Shuttlesworth to 90 days imprisonment and a fine. Shuttlesworth appealed all the way to the U.S. Supreme Court.
The Supreme Court reversed the conviction in Shuttlesworth v. City of Birmingham (1969), finding that the city licensing law operated as an unconstitutional prior restraint on free expression. The Court wrote that “our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.”
“It was quite settled law that a licensing ordinance has to set forth specific criteria by which parades, speech or other expression can be regulated,” said Columbia law professor Jack Greenberg, who argued the case for Shuttlesworth before the Supreme Court. “This ordinance completely left the criteria to the discretion of the enforcing authorities, and that was unconstitutional.”
“Shuttlesworth was thoroughly devoted to the cause of civil rights,” Greenberg said. “He was intense, focused and a bundle of energy.” Greenberg also said Shuttlesworth was “underrecognized” for his behemoth efforts on behalf of civil rights.
The Rev. Shuttlesworth, who lives today in Cincinnati, has also been underrecognized for his significant contribution to First Amendment freedoms.
Alton Lemon challenged a 1968 Pennsylvania law that provided state aid to many religious schools, most of which were Roman Catholic. The law provided that the state would directly reimburse these private schools for their expenses for teachers’ salaries, textbooks and instructional materials.
The U.S. Supreme Court struck down the Pennsylvania law and a related Rhode Island law on June 28, 1971. The name of the case was Lemon v. Kurtzman.
Lemon, who as a youth played on the same YMCA basketball team as Martin Luther King Jr., never set out to become the lead plaintiff in a landmark Supreme Court decision.
“No, I didn’t expect that,” he said in an interview. “In fact, I was surprised that my name was at the top of the docket.”
Lemon said that he attended a monthly meeting of the American Civil Liberties Union and expressed his displeasure at state money being spent for religious purposes. “I think the separation of church and state is extremely important,” Lemon said. “That is one of the main reasons I got involved in this case. I feel very strongly about this issue.”
The Supreme Court ruled that the Pennsylvania law was unconstitutional because it fostered an excessive entanglement between the church and state.
“The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow,” the Court wrote. “The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.”
Lemon v. Kurtzman is well known because in its ruling the Court articulated a three-part test — called the Lemon test — for evaluating whether laws violate the establishment clause. The Court wrote: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion … ; finally, the statute must not foster an excessive entanglement with religion.”
Lemon said he believed we still have a long way to go to ensure the separation of church and state. “I’m not sure we’ve cleared all the hurdles,” he said. “There are still attempts to get religion involved in state matters. Our present president is a good example of that.”
The Supreme Court has articulated additional tests to deal with establishment-clause issues. Several justices and many legal commentators have criticized the Lemon test. Justice Antonin Scalia colorfully disparaged it in 1993: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again.”
But despite hefty criticism, the Lemon test remains the dominant mode of analysis for deciding establishment-clause cases.
For that alone, those concerned with First Amendment freedoms should remember Alton Lemon.
“I am proud of it,” he said of his name being connected with a landmark Supreme Court decision. “But this has to be a continuing fight. This is an area in which we need people to pay careful attention because the fight is not over and it will probably never be over.”
Ishmael Jaffree, a legal-services attorney, continued in the tradition of Alton Lemon by challenging another church-state entanglement.
Jaffree questioned the constitutionality of an Alabama law providing for a moment of silence for “meditation or voluntary prayer.” He commenced this legal battle after his 5-year-old kindergartener informed him that his teacher was having the class pray before lunch.
Jaffree related the reason he brought the lawsuit in Peter Irons’ book The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court: “I wanted my children to be free from programmed thinking, conditioned thinking. I wanted them to be free to explore a wide variety of ideas and not have to go through the long and painful metamorphosis that I went through.”
“Some of the harshness directed towards him was because of his race as well,” said his attorney, Ronnie L. Williams, also an African-American lawyer. “Many in the media called him a black Muslim even though his name had nothing to do with Islam. Race definitely played a factor in how he was treated.”
Williams said he and Jaffree both received death threats during the course of the litigation. But, Williams, who still practices law in Mobile, said Jaffree was never swayed from his purpose. “Jaffree sat at counsel’s table with me before the U.S. Supreme Court and passed me notes,” Williams recalled. “He was determined to take the case all the way. He was a special person because when he felt that he was right he didn’t care how people felt about him or what people thought about him He suffered so much abuse and so did his kids, but he was determined to fight this case till the end.”
On June 4, 1985, the U.S. Supreme Court ruled in Wallace v. Jaffree that the Alabama moment-of-silence law violated the establishment clause because the purpose of the state Legislature in passing the law was to return prayer in school. “The addition of [the language] ‘or voluntary prayer’ indicates that the State intended to characterize prayer as a favored practice,” the Court wrote. “Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.”
“Absolutely, he was a First Amendment hero,” Williams said of Jaffree.
First Amendment hero Anthony Griffin, an African-American attorney from Galveston, Texas, gained acclaim when he defended the First Amendment rights of Michael Lowe, “grand dragon” of the Texas Knights of the Ku Klux Klan.
Government officials had subpoenaed Lowe to provide Klan membership lists to determine whether Klansmen were involved in intimidation and housing discrimination.
Griffin, a volunteer attorney with the ACLU, agreed to handle Lowe’s case — even though he disagreed with the Klan’s racist ideology. Griffin successfully defended his client, as the Texas Supreme Court dismissed charges against Lowe for refusing to comply with the subpoena.
For his representation of a Klan member, Griffin met disapproval from the NAACP, which removed Griffin from his position with the group. However, he earned awards from the First Amendment community for his staunch defense of First Amendment values.
Griffin achieved another milestone in First Amendment law when he successfully represented several students and parents from Santa Fe (Texas) High School concerning school officials’ promotion of religion. The dispute eventually reached the U.S. Supreme Court, which had to decide whether a school district policy of permitting student-initiated prayers over the loudspeakers at high school football games violated the establishment clause.
In Santa Fe Ind. School v. Doe, the high court ruled 6-3 in favor of the challenging students and parents. “Nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day,” wrote Justice John Paul Stevens for the majority. “But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”
Whether defending an unpopular client like a KKK member or an unpopular cause such as challenging school prayer, attorney Anthony Griffin has shown a great passion for defending First Amendment values.
All four of these African-Americans — Fred Shuttlesworth, Alton Lemon, Ishmael Jaffree and Anthony Griffin — deserve to be remembered and respected for their First Amendment battles.