Wednesday, April 25, 2018

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New Strategies for Civil Rights in the New Millennium

abstracted From: Bernie D. Jones, Critical Race Theory: New Strategies for Civil Rights in the New Millennium?, 18 Harvard BlackLetter Law Journal 1-90, 1-5 (Spring, 2002) (378 Footnotes)

The development of critical race theory points to a new direction taken by civil rights activists in the wake of civil rights setbacks in the 1970s and 1980s when official government policy no longer supported an expansive civil rights agenda. The United States Supreme Court began limiting and eviscerating precedents that once promised full equality for African Americans under the law. Critical race theorists who fought against this declension from civil rights began storytelling, in which they gave voice to the contemporary civil rights struggle. They explained the situation of "outsiders," people of color dispossessed by the law.

The Parts of this Article--civil rights litigation before the Supreme Court under Earl Warren and under Chief Justices Burger and Rehnquist, the breakup of the African American liberal coalition, the storytelling response, and protest--explain the development of critical race theory, its antecedents in the legal liberalism that enabled the civil rights movement, and its rejection of formalism on the Supreme Court. The critical race theorists had as their objective, ending exclusive reliance upon civil rights litigation, storytelling to broaden public consciousness of racism and discrimination under the law, and protest reminiscent of the civil rights movement of the 1950s and 1960s.

In 1969, the civil rights movement was in crisis. The decade-long struggle for equal rights in the South had crested, and the momentum that began with Brown v. Board of Education had begun to dissipate. Although Congress had passed two pieces of legislation that promised to eradicate the evils of Southern apartheid, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the future looked bleak. Martin Luther King had been assassinated the year before, and his attempts to bring the civil rights movement to the North had come to naught. Northern blacks had never experienced legal segregation and discrimination; instead, they experienced it on an unofficial basis. Long-standing housing discrimination relegated them to ghettos and their children to neighborhood schools inferior to those attended by white children. Blacks from Watts to Newark had rioted against an unseen enemy: their lack of economic opportunity, for which no Jim Crow institution could be blamed.

African American intellectuals, in their long-standing position as leaders and activists, tried to determine what the next strategies should be. Was the movement over? Had the legal aspects of the movement done all it could do? Was the movement in the hands of a federal government, seemingly pledged to eradicate the problems, stemming from decades of discrimination, subservience and poverty? Should blacks rely upon group-based remedies such as affirmative action? What was the best means of ensuring empowerment? Some said it lay in individual effort; all official barriers to full participation in American society had already been blasted away by the force of civil rights legislation. Others looked to black power, removal from dependency upon whites, buttressed by a determination to do for self. In their view, dependency only led to vulnerability, because whites decided how and when blacks would become empowered, on terms palatable to them, but not necessarily beneficial to blacks.

At the same time, American politics began to move right and officials abandoned the liberal activism that had been central to the civil rights movement. White voters looked at "black power" with fear. In their minds, this new nationalism had a sinister tone, one that resonated with violence in the city streets and a disregard for law and order. It was a blackness rooted in arrogance and disdain for whiteness, in which every white became culpable for the sins committed against African Americans over centuries of slavery and disempowerment. This was far different from the liberalism of 1950s-era activists who made appeals to Christian morality and notions of justice.

The white response to the evolution within the civil rights movement varied. While some remained loyal, others abandoned the civil rights project, believing that the movement was over, because civil rights legislation had been passed. Banding with conservatives who rejected liberal judicial activism, they joined a growing populist movement, arguing that it was time to circle the wagons and take care of whites. Along with their white liberal allies, the "bleeding heart liberals" supportive of expansive civil rights policy, and the upper class "armchair liberals," blacks seemed to these newly conservative whites to be bent upon using government to take away the rights of working and middle class whites. Affirmative action thus meant reverse discrimination, as innocent whites were sacrificed for the actions of long-dead slaveholders.

White populism meant the rise of the Republican party and rejection of the Democrats, as the coalition between white ethnic laborers in the Northeast and blacks fell apart. Nixon, Ford, Reagan, and Bush made it into the White House, as compared to only Carter and Clinton. As presidential politics began more and more to determine the nature of judicial policy and politics, the Supreme Court reflected this new trend, as Republican presidents nominated like-minded judges to the bench.

The Court became the means by which Republican presidents could ensure the end of liberal civil rights policy because Justices have life tenure. These justices promulgated a formalist position on civil rights that marked a return to narrow concepts of jurisprudence and a rejection of liberal judicial activism. In the eyes of activists, the Supreme Court was no longer an articulate voice in favor of civil rights and liberties; instead, it became a threat, for the justices seemed able to limit precedents or do away with them altogether. Law professors of color such as Derrick Bell were among the first to notice this trend.

Derrick Bell was an activist lawyer in the civil rights movement; he once worked for the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund in fighting for full equality under the law. He believed in an expansive civil rights project which would guarantee protection of African American rights on all fronts. He supported Brown. But in the wake of white conservative populism, the rise in black nationalism and the failure of liberal judicial activism to insure the promise of Brown, he began to question the liberal legal ideal. By this time, Bell was a law professor; both his scholarship and pedagogy reflected his developing perspective.

Bell came to believe Brown was a failure, because the lawyers who litigated the case sought a formal remedy--desegregation--without considering the heart of the true claims African Americans made. Inequality in resource allocation was the true problem, and it was one that could not be disguised by cosmetic remedies. The mere presence of African Americans in all-white institutions meant nothing as long as whites retained full power and control over decision-making processes. African Americans thus remained supplicants to white benevolence, and whites made changes only to the point at which their personal interests were not compromised.

As a legal educator in the early 1970s, Bell transferred his activism to a different milieu. He began to train the next generation of lawyer activists. Harvard Law School hired him because he had practical civil rights experience, and the trend of legal education at the time encouraged the presence of seasoned civil rights veterans. Civic-minded law students were gravitating toward civil rights practice; thus, Bell had a special role. But in addition, his presence as an African American was important, as greater numbers of law students of color started entering law school. The law students looked to him for mentoring and for instruction on what they could expect as civil rights lawyers. They learned his critique of civil rights practice and followed his examples of activism. Bell criticized the law as an institution; insofar as Harvard was part of that institution, he criticized it too and raised the rallying cry of protest.

Bell's students took the lessons he taught them and critiqued Harvard's traditional role in society as an elite mainstream institution, responsible for supplying the lawyers who populated the ranks of high court judges, practitioners and legal educators. They blamed Harvard for failing to contribute to a true liberal agenda that would empower communities of color. They followed Bell's example of legal activism in academia and raised protests within the law school at various times during Bell's tenure. When Bell took over as dean of the University of Oregon's law school in 1983, they boycotted a civil rights class being offered, on the ground that there remained no tenured instructors who could serve as effective mentors to students seriously interested in civil rights.

Among the Bell students who became academics, one can find founding members of a group of legal scholars who built upon Bell's critique of legal liberalism through their own scholarship, such as Kimberl Williams Crenshaw and Patricia J. Williams. Following in Bell's footsteps, they adopted "storytelling," an approach to scholarship and pedagogy in which they articulated the worldview of the downtrodden. They explained how people of color experienced the law, how it limited them and corralled them into subservience. Telling stories had the potential to liberate people of color made powerless by the forces of law, as the critical race theorists offered therapeutic consciousness-raising. As scholars themselves, they were seeking their own liberation, an understanding of the "dual consciousness" that came with their status as law professors of color. They were supposedly empowered under the law, but they felt disempowered by the white institutions that employed them. But they were also powerful arbiters of the law, articulate in its language, leaders of their people. They had a special responsibility to engage the law and use it for their community's liberation, even though the law traditionally operated to dispossess people of color.

Within the legal academy, critical race theory generated controversy. Traditionalist legal scholars rejected it as not being scholarly enough. Storytelling as an approach to scholarship did not resemble anything the traditionalists could recognize. There was little discussion of law, of legal rules, or of jurisprudence. In the eyes of some, storytellers simply told tales with no legal context. These were "agony tales," with no corresponding explanation of how legal rules mattered to the story. They did not propose alternative ways of looking at legal rules and did not develop new ones. To that extent, traditionalists claimed the critical race theorists neglected their responsibilities as lawyers, scholars and professors.

Notwithstanding rejection bythe traditionalists, critical race theory continued to develop. Early members of the critical race theory cohort were teaching at law schools throughout the country, and by the late 1990s, other scholars became interested in it. Some were curious observers, others were students of the early cohort who gained employment at law schools. They began writing in the storytelling tradition. Most significant in this movement however, was Bell's ability to marshal popular support for critical race theory storytelling in the early 1990s. He turned his long-standing criticism of Harvard Law School into an indictment of American civil rights policy as a whole.

Bell took a protest leave from Harvard. He claimed that Harvard engaged in a long-standing practice of offering visiting professorships to qualified African American female law professors, but then declined to offer them tenured positions. Instead, the administration routinely offered such positions to visiting white male professors. This protest brought Harvard and Bell to national attention, as the struggle over affirmative action within the legal academy raised serious policy questions being debated throughout the country.

Within the African American middle and professional class, Bell became a hero and was held up as an example to emulate, even as political conservatives, formalist justices and traditionalist legal scholars rejected him. He was leading the contemporary civil rights movement in a period when discrimination was no longer a straightforward issue as it had been during the period of legalized segregation prior to Brown. In the wake of changing ideas about discrimination law when formalism threatened to undo the gains of the 1960s, Bell's protest articulated the concerns of many blacks who perceived that although they made headway into white mainstream society and middle class professional status, racism and discrimination always threatened to rise up to and thwart their ambitions.

The acceptance of Bell and critical race theory was made possible through storytelling. Once Bell and other critical race theory storytellers such as Richard Delgado and Patricia J. Williams reached beyond an academic audience and addressed the public through fiction writing, story-telling became popularized. Divorced from the debates within the legal academy, it became cultural criticism, and the critical race theorists became well-known critics of the conservative right and of the legal system in general. Looking at current events, they pointed out the inconsistencies of the term "equal justice under the law," whenever the legal system failed to live up to its promises and instead denied justice to African Americans.

Commenting upon well-known and controversial cases of the mid to late 1990s, such as Rodney King, they explained what seemed inexplicable to many. At a time when many African Americans thought they were experiencing a backlash against civil rights and greater tolerance for racism seemed to be in vogue, the critical race theorists explained that the law upheld and provided justification for racist behavior. Political liberals thus celebrated critical race theory as a literature that demonstrated why the civil rights struggle had not ended. They welcomed scholars of color who explained the changing discourse on civil rights as it was being developed by formalist justices on the Supreme Court.

[a1]. Ph.D. candidate in history, University of Virginia. J.D., New York University School of Law, 1992; M.A., University of Virginia, 1997. This Article is part of a dissertation in progress.

The Legal Status of the Southern Negro in 1955

Randall Kennedy, Martin Luther King's Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law Journal 999-1067 (April, 1989)(397 Footnotes Omitted)

I. What Martin Luther King Was up Against: the Legal Status of the Southern Negro in 1955

At mid-century, as throughout the history of the United States, the racial subordination of blacks constituted an explosive national problem. The South, however, was the locus of the most intense and visible racial struggles. In the 1950's, Southern society was beginning to experience with increasing severity a sharp tension created by the urgency of black aspirations and the inertia of the established order. In racial terms, the most striking aspect of the status quo was segregation--the relegation of blacks on the basis of race to a separate and subordinate sphere in every arena of social interaction.

A. Segregation in the Public Sphere

Segregation was a way of life determined in large part by whites who virtually monopolized state power and used that power to subjugate blacks. Although the Fifteenth Amendment to the Constitution prohibited states from disenfranchising persons on account of race, the White South openly and successfully used private power and state authority to deny the Negro the ballot. On the one hand, terroristic violence and economic intimidation dissuaded many blacks from exercising their rights to political participation. On the other hand, literacy tests, poll taxes, permanent disenfranchisement upon conviction for certain crimes, creation of super-majoritarian districting schemes, 'grandfather clauses,' and 'white primaries' provided 'legal' means of disenfranchisement. By the mid-1950's, some of these impediments had been invalidated. But several of the most effective obstacles to black participation remained untouched. In 1956, only 25 percent of all black adults in the South were registered to vote as compared to 65 percent of all white adults. Moreover, black voting was largely confined to urban areas. In many rural areas, black voters were virtually non-existent; in Mississippi in 1955, fourteen rural counties with large black populations had no black registered voters. Although less oppressive than in Mississippi, the environment in Alabama for Negro participation in electoral politics was also dismal. In 1960, only 9.1 percent of the voting age blacks in Montgomery County were registered, in comparison to 46.1 percent of the voting age whites. In two other Alabama counties populated predominantly by blacks, none were registered.

The success of white supremacists in negating black political participation produced all sorts of collateral consequences burdensome to Negroes. The elimination of Negro voters freed white politicians to ignore or to attack their black constituents at little or no political cost. At the national level, white supremacists in Congress stymied federal legislation aimed at relieving the oppression of the Southern Negro. On scores of occasions between 1920 and 1950, the Southern bloc in Congress succeeded in killing federal anti-lynching legislation. At the local level, white supremacists turned every lever of state power into an instrument of racial oppression. There was little that Negroes could do through conventional politics to oust officials who hired only whites as agents of the state--e.g., prosecutors, tax-assessors, jury commissioners, or police officers. In Montgomery in 1954, the hiring of four blacks to the previously all-white police force was considered a noteworthy breakthrough. But even such a minimal change as this triggered extreme white resentment. To placate enraged whites, the Montgomery Police Chief stated that the new black policemen were 'just niggers doing a nigger's job.'

White officials, reflecting their own personal biases as well as the social dynamics that placed them in office, exercised discretion in ways that almost invariably slighted black interests. What this meant concretely was that blacks typically received inferior public goods and services. The separate and unequal character of segregated public schooling has been well-publicized. But what has not been adequately appreciated is the all-inclusive extent of systematic inequity. From sewer service to lighting to the upkeep of streets to law enforcement to recreational facilities, blacks could realistically expect to receive fewer resources because of racial bias.

Political subordination was facilitated by stigmatizing beliefs regarding the alleged moral and intellectual inferiority of Negroes. One asserted reason for excluding blacks from activities which ideally required responsibility, honesty, and intelligence was that they simply lacked such traits. Tremendous effort was expended toward eliminating blacks as jurors, for instance, not only because their presence might have made a difference in certain categories of cases--e.g., interracial disputes--but also because it was simply not 'fitting' for blacks to participate in the administration of justice, because they were incapable of conducting themselves properly.

B. Segregation in the Private Sphere

Deep-seated contempt also expressed itself in governmental commands requiring racial separation even in 'private' contexts in which individual whites and blacks might themselves desire to interact. In the mid-1950's, Southern statute books were full of laws that punished interracial sex with enhanced penalties and that prohibited or rendered void interracial marriages. The quasi-religious punctiliousness with which local governments stamped segregation upon the social fabric of their jurisdictions is vividly illustrated by a city ordinance in Montgomery which declared it

unlawful to conduct a restaurant or any other place for the serving of food . . . at which white and colored people are served in the same room, unless such white and colored people are effectually separated by a solid partition extending from the floor upward to a distance of seven feet or higher and unless a separate entrance from the street is provided for each compartment.

It was virtually inevitable, of course, that state-enforced racial subordination would condition the racial mores of private parties even in areas left unregulated by statute. In the job market, for instance, the racial prejudice of employers and labor unions, along with the consequences of historical deprivations, combined to create a system of occupational stratification under which blacks were relegated to the lowest paying and least prestigious positions. In a typical Southern city in the 1950's, at least 75 percent of the black men labored as unskilled workers in contrast to 25 percent of the white men. While 50 percent of black working women labored as domestics, less than one percent of white working women were so employed. In Montgomery in 1950, the median income for whites was $1730, for blacks $970. In a city of about 106,000-60 percent white and 40 percent black--three physicians, one dentist, two lawyers, and one pharmacist occupied the top of the black occupational hierarchy. By contrast, the white population boasted 144 physicians and surgeons, 43 dentists, 189 lawyers and judges, and 62 pharmacists. Ministerial service was the one professional occupation in which the numbers of blacks compared favorably with the number of whites: 92 black clergymen and 95 white.

What one analyst wrote in 1967 applied a fortiori to the state of affairs a decade earlier:

In the South, Negro employment opportunity is rigidly prescribed by traditions in race relations. The practice of dividing the work market into 'white jobs' and 'Negro jobs' has been clearly defined, and practices governing use of the Negro labor force have been reduced to observable 'laws.' For example, Negroes seldom work side by side with whites in the South, particularly in jobs that carry advantages in income, responsibility, potential for upgrading, and cleanliness. This is the case whether on the assembly line or elsewhere in the plant or business. Negroes rarely, if ever, supervise whites in the South, and opportunity for them to apply themselves at tasks commensurate with their skills and abilities is overwhelmingly confined to segregated areas of the economy that provide services to other Negroes.

Mrs. Rosa Parks' experience was characteristic. Although she was one of a small number of black high school graduates in Montgomery, she found herself unable to obtain employment in which she could put to full use her educational training and abilities; all she could obtain were menial jobs.

C. The Etiquette Of Segregation

Segregation also conditioned etiquette--the micropolitics of day-to-day living. The essential function of segregationist racial etiquette was to define and maintain the social distance necessary to highlight the social superiority of whites in relation to blacks.

Jim Crow etiquette required blacks to address whites as 'Mr.' or 'Mrs.,' but allowed whites to address blacks by their first names. It counselled blacks to enter a white person's dwelling from the rear, but imposed no reciprocal expectation. It required blacks and whites to dine separately under all circumstances. And it warned black men to show absolutely no sexual interest in white women while tolerating white men's sexual attraction to black women. As one observer commented, ' I n the social framework of the southern region there is no place for the discussion of sex relations involving a white woman and a Negro man. Even a rumor of this kind threatens the security of the Negro.' Brutally illustrating the degree to which the race line in sexual affairs remained dangerously charged in the mid-fifties, particularly in the rural Deep South, was the killing in August 1955--three months before the advent of the Montgomery Bus Boycott--of a black youngster in LeFlore County, Mississippi. Raised in Chicago, Illinois, and therefore unfamiliar with the racial etiquette of southern segregation, fourteen year-old Emmett Till made the fatal mistake of whistling at a white girl. For that infraction, he was bludgeoned and shot in the head. Still more instructive is that an all-white jury acquitted those charged with Till's murder even though the evidence pointed overwhelmingly to their guilt.

D. Segregation's Limits

Although segregation privileged whites at the expense of blacks, it did not represent a complete victory for white supremacy. Rather, it embodied an uneasy compromise between the racial egalitarianism that emerged powerfully during the First Reconstruction and the white supremacist reaction that followed. On the one hand, after dismantling the First Reconstruction during the last three decades of the nineteenth century, whites in the South largely succeeded in disenfranchising blacks. On the other, the guarantee of the Fifteenth Amendment stood in the way of a formal color bar in electoral politics. Similarly, white power structures in southern locales largely succeeded in materially and psychologically crippling black communities. Yet, the fact that, at least formally, the states owed blacks services equal to those provided to whites represented a nagging reminder that the Civil War and Reconstruction had successfully imposed certain limitations on the use of power by whites. Although the White North largely abandoned the Southern Negro to his former masters after the collapse of Reconstruction, the specter of northern intervention in southern affairs remained a potent enough deterrent to exercise some degree of restraint over white southern policymakers.

Segregation, moreover, never wholly succeeded in legitimating itself. Some blacks embraced it. But many more recognized segregation as a form of oppression and, with a few white allies, challenged it whenever they thought they could reasonably do so without paying too high a cost. At the turn of the century, for instance, blacks used boycotts to fight the introduction of segregation to municipal transportation. Between 1900 and 1907, blacks boycotted segregated streetcars in at least twenty-seven cities, including Montgomery. This precursor to the boycott of 1955-56 lasted two years--from 1900 to 1902--and compelled a private streetcar company to disregard, at least temporarily, the City's segregation ordinance. The blacks' victory, however, was short-lived; segregationist practice was soon reimposed. Even the memory of the temporary victory was lost; neither Martin Luther King nor any of the other leaders of the later boycott mentioned the earlier struggle. Still, the very occurrence of these twenty-seven turn-of-the-century boycotts vividly indicates the presence of an active black resistance even during the worst periods of segregationist repression.

Another manifestation of resistance was litigation aimed at challenging various features of the segregation regime. This litigation, much of it directed by the National Association for the Advancement of Colored People (NAACP), attacked a wide spectrum of practices including racial exclusion in the composition of juries, residential segregation, voting discrimination, and segregation in interstate transportation. The capstone of this effort was Brown v. Board of Education, the most famous Supreme Court decision of the twentieth century, the case in which the Justices unanimously held that de jure segregation in public schooling violated the Constitution.

Viewed collectively, these suits embody the most successful campaign of social reform litigation in American history. But inasmuch as officials frequently ignored or evaded judicial decisions, one must be careful not to exaggerate the consequences of victorious lawsuits. Rulings often promised far more on paper than the legal machinery delivered in the crucible of day-to-day living. By 1955, however, the cumulative weight of Supreme Court precedent had combined with other important trends and developments, such as a general revulsion against racism in the aftermath of the Holocaust and a felt need to compete with the Soviet Union for the hearts and minds of people of color in Africa and Asia, to shift white public opinion, putting proponents of segregation squarely on the defensive.

E. Segregationist Counter-Attacks

Segregationist defensiveness, however, displayed itself aggressively. Authorities attempted to eliminate the NAACP by applying some of the same tactics that states and the national government had previously employed against left-wing organizations. States tried to force local chapters of the NAACP to disclose their membership lists, enacted statutes that prohibited the NAACP from urging blacks to use its legal staff to seek redress through litigation, and disseminated derogatory propaganda about the organization. Moreover, in the wake of Brown, the political leadership of the Southern states engaged in 'massive resistance' that included resolutions by state legislatures declaring the Supreme Court's judgment 'null, void and of no effect,' laws that imposed sanctions against anyone who actually implemented desegregation, subterfuges that evaded or drastically slowed desegregation, and school closing plans that authorized the suspension of public education and the disbursement of public funds to parents and children for use in obtaining education in 'private,' segregated facilities.

Although at mid-century, politics in the South remained predominantly 'white folk's business,' a segregationist reaction was prompted by NAACP victories in the courts along with an increase in black voter registration. To stem further increases, the Deep South states used two maneuvers in tandem: one tightened registration requirements, while the other augmented the discretion of local registrars. Tightening registration requirements enabled states to exclude a disproportionate number of blacks by even-handed application of race-silent criteria. Augmenting the discretion of registrars enabled states to (1) cheat on behalf of whites who would otherwise have been excluded by the elevated criteria and (2) exclude blacks who, if fairly evaluated, could satisfy the new standards.

In some areas, officials did more than slow or stop black progress; they rolled it back. In Louisiana, for instance, parish registrars were encouraged by a legislative committee to search the registration applications of Negroes for errors that could be used as the basis for revoking registration. Applying this method, registrars removed ten to eleven thousand blacks from voting rolls in twelve parishes between 1956 and 1957.

Accompanying the reaction of state governments were responses by private persons and organizations. A new group, the White Citizen's Council, engaged in a campaign to 'persuade' blacks who had registered to strike their names 'voluntarily' from the voting roles. In Sunflower County, Mississippi, the Council's efforts caused black registration to fall from 114 to zero within a matter of months.

Economic coercion played an important role in dissuading blacks from voting or exercising other rights purportedly guaranteed by the Constitution. Also influential was the willingness and ability of whites to resort to violence in defense of the old order. Between 1955 and 1959, 210 incidents of racial violence were recorded in the eleven states of the Old Confederacy. This catalogue of terror included six murders, twenty-nine assaults with firearms, forty-four beatings, and sixty bombings. To put the matter more concretely it involved

a raid by more than a hundred sheeted men into the black section of Maplesville, Alabama, that left six Negroes injured . . . the castration of a Negro handyman in Birmingham, Alabama, as part of a Klan ceremony . . . the flogging of a white school teacher in Camden, South Carolina, because he had allegedly made a favorable reference to desegregation . . . the shotgun displayed by a robed Klansman as a motorcade of some one hundred cars drove through a Negro residential section in Summerville, Georgia . . . the dynamiting of a white physician's home in Gaffney, South Carolina, because the physician's wife had written an article favoring racial justice . . . the Negro woman who withdrew her suit against a North Carolina school board after receiving threats that her children would never return if they attended the white school . . . [and] the flogging of a white sawmill worker in Stanton, Alabama, because he was accused of 'associating too freely with Negroes.'

Such was the state of affairs in the South at mid-century.

II. Rebellion in Montgomery

No events better epitomized the struggle of Southern blacks against segregation during the Second Reconstruction than the boycotts directed against Jim Crow seating on buses, 'one of the few places . . . where blacks and whites were segregated under the same roof and in full view of each other.' The most famous of these boycotts occurred in Montgomery.

A. The Spark

The spark that ignited the boycott was the refusal of a black woman--Rosa Parks--to follow a driver's directive that she relinquish her seat and move further back into the rear, 'black' section of the bus. The seat she occupied was located in the first row of the black section, a row filled by three blacks besides Mrs. Parks. According to one version of the facts, the bus driver demanded that Mrs. Parks and the other blacks on her row vacate their seats to accomodate several white passengers. In this account, a sense of segregationist equity informed the driver's decision. On this predominantly black route, the bus company allocated ten seats to the whites and twenty-six to the blacks. But on this particular run, the driver 'undertook to readjust the seating to a more equitable ratio . . . by altering the racial division to fourteen white seats and twenty-two black.' A slightly different version of the facts suggests that the driver demanded that all of the blacks in Mrs. Parks' row vacate their seats in order to accomodate only one white passenger. According to this version, the driver's demand stemmed from an unwritten rule of Jim Crow etiquette which prohibited blacks and whites from occupying seats on the same row at the same time.

Whatever version accords with the reality of the driver's conduct and motivation, there is no disagreement about the nature of Mrs. Parks' response. While the three blacks on either side of her relinquished their seats as ordered, she stayed put. 'I felt it was just something I had to do,' she later recalled. Her refusal to move, however, was more than a personal whim. As Martin Luther King observed, she had been 'tracked down by the Zeitgeist.' 'She was anchored to that seat by the accumulated indignities of days gone by and the boundless aspirations of generations yet unborn.' When police officers boarded the bus and demanded that she move, she again refused. 'Why do you push us around,' she asked. 'I don't know,' one of the officers replied, ' b ut the law is the law, and you are under arrest.'

Mrs. Parks' arrest elevated to new levels widespread dissatisfaction within Montgomery's black community. By the early 1950's, segregation on the buses had become a flashpoint of frustration and anger. In 1952, a black man was shot and killed by the Montgomery policy in an altercation over bus fare. In 1953, in a similar dispute, a white driver beat a black woman. The source of deepest resentment, however, was not episodic outrages but rather the ordinary degradations of Jim Crow practice--standing up over empty seats reserved for whites only, confronting drivers who refused to make change for Negroes, entering buses from the rear after paying fares at the front, encountering abuse for forgetting even momentarily the code of the color bar. Jo Ann Gibson Robinson recalled with seering vividness the pain she suffered at the hands of a driver who assailed her for sitting (mistakenly) in a seat reserved for whites:

I leaped to my feet, afraid he would hit me, and ran to the front door to get off the bus. . . . Tears blinded my vision; waves of humiliation inundated me; and I thanked God that none of my students was on that bus. . . . I could have died from embarrassment. . . . In all these years I have never forgotten the shame, the hurt, of that experience. The memory will not go away.

B. The WPC's Modest Proposals

In the early 1950's, a black women's civic organization--the Women's Political Council (WPC)--took the lead in seeking to secure better treatment for blacks from the bus company. The WPC requested and obtained meetings with city and bus company officials to convey complaints and requests. It simply asked for 'fairness' within the bounds of segregation. On May 21, 1954--four days after the announcement of Brown v. Board of Education--the WPC requested not an end to the enforcement of segregation laws but merely the cessation of certain practices that were not compelled by statute: ousting blacks from seats outside the reserved 'white sections' of buses and requiring blacks to enter buses through the rear after paying in the front. Despite the modesty of the WPC's requests, it received little satisfaction. The WPC informed city officials that a boycott was in the offing unless something was done to better the situation. Yet in March and October 1955, two black teenagers were arrested for refusing to relinquish their seats. Then came the arrest of Rosa Parks.

The WPC took the lead in initiating a boycott by blanketing black neighborhoods with leaflets that urged Negroes to forego riding the buses on the day of Mrs. Parks' trial:

Another Negro woman has been arrested and thrown in jail because she refused to get up out of her seat on the bus for a white person to sit down. . . . If we do not do something to stop these arrests, they will continue. The next time it may be you, or your daughter, or mother. . . . We are, therefore, asking every Negro to stay off the buses Monday in protest of the arrest and trial. Don't ride the buses to work, to town, to school, or anywhere. . . . You can . . . afford to stay out of town for one day. If you work, take a cab, or walk. But please, children and grown-ups, don't ride the bus. . . .

The call for a one-day boycott elicited a dramatic response: on December 5, 1955, the vast majority of the black bus-riding public--seventy percent of the bus company's clientele--refrained from using the buses. Emboldened by success, leading figures in the black community created a new umbrella organization--the Montgomery Improvement Association (MIA)--to coordinate the protest and press for its continuation. The Key figure in this process was E. D. Nixon, the local elder statesman of civil rights activists. Nixon was a Pullman porter who had long been active in the Brotherhood of Sleeping Car Porters, the first black union to wrest a collective bargaining agreement from a major company, and a leader of local and state chapters of the NAACP. He marshalled the support of churchmen and other influential blacks, used his contacts with the local white press to publicize what was happening, and provided the protest in its earliest phase with the prestige of his own reputation.

C. King's Role

Although Nixon was the best-known of the dissidents who founded the MIA, King was selected to preside over it. He was younger, better educated, more articulate, and a member of the clergy--a position that gave him a strong institutional base of support. King was also relatively unscarred by one of the features of black life in Montgomery that had long stifled effective responses to racial oppression: bitter personal jealousies and animosities. He had not resided in Montgomery long enough to be identified strongly with any given faction or to rub many people the wrong way. He was the consensus choice of Montgomery's black dissident elite and quickly gained the support of the city's black masses as well.

King was born and raised in Atlanta, Georgia, in a solidly middle-class family that wielded considerable influence due to its heritage of leading churchmen; King's father and maternal grandfather were well-known pastors. He was educated at Morehouse College, Crozer Theological Seminary, and Boston University, where he earned his doctorate. At the time of Rosa Parks' arrest, King was engaged in his first pastorship as the minister of the Dexter Avenue Baptist Church. He had resided in Montgomery for only a little more than a year and was only twenty-six years old.

King's selection as president of the MIA was quickly vindicated by the speech he delivered the night of Mrs. Parks' trial. Before an overflow audience at the Holt Street Baptist Church, he delivered, largely extemporaneously, a short but impassioned address that sounded many of the major themes upon which he would elaborate during the remainder of his life. He did so with the mix of patriotism and outrage, simplicity and sophistication that make his speeches among the most memorable in American history. 'My friends,' he began:

We are here this evening for serious business. We are here in a general sense because first and foremost, we are American citizens, and we are determined to acquire our citizenship to the fullness of its meaning. We are here because of our deep-seated belief that democracy transformed from thin paper to thick action is the greatest form of government on earth. But we are here in a specific sense because of the bus situation in Montgomery. We are here because we are determined to get the situation corrected.'

King's speech aroused a tremendous swell of enthusiasm. It expressed sentiments that had long lain dormant: '[T]here comes a time when people get tired of being trampled over by the iron feet of oppression.' It articulated an urgent yearning for dignity: 'We are here to save ourselves from the patience which makes us patient with less than freedom and justice.' It stressed the moral and legal righteousness of the protest. 'My friends,' King declared:

don't let anybody make us feel that we ought to be compared in our actions with the Ku Klux Klan or the White Citizens Councils. There will be no crosses burned at any bus stops in Montgomery. There will be no white persons pulled out of their homes and taken out to some distant road and murdered. There will be nobody among us who will stand up and defy the Constitution of this nation.

The boycott lasted 382 days, from December 5, 1955, to December 21, 1956, far longer than its organizers initially thought possible. As King later observed:

Many of the Negroes who joined the protest did not expect it to succeed. When asked why, they usually gave three answers: 'I didn't expect Negroes to stick to it,' or, 'I never thought we Negroes had the nerve,' or, 'I thought the pressure from the white folks would kill it before it got started.'

But to the surprise of many, the boycott was consistently effective. Upwards of ninety percent of the black, bus-riding population--some 40,000 Negroes-- honored the plea to stay off the buses. To transport the boycotters, the MIA created an alternative transportation network connected by about eighty to ninety dispatch and pick-up stations all over Montgomery. Initially, this alternative system of transportation depended almost wholly on labor and automobiles donated to the MIA on a part-time basis. But soon the system took on an air of semi-permanence as the MIA hired drivers, bought vehicles, and forged a remarkably effective transportation service that operated, according to the White Citizens Council, with 'military precision.'

The success of the MIA's transportation system reflected the extraordinary sense of political commitment that suffused and mobilized the black community. Black Montgomery psychologically declared its independence from the white power structure and became, in important respects, self-governing. King and the other key figures in the MIA provided direction. But the boycott movement was, throughout its existence, a strikingly democratic phenomenon. As one friendly observer commented, 'If there was ever an indigenous mass movement, this was it.' To keep the community abreast of developments, the MIA published a newsletter. And to ensure an ongoing and active rapport between leaders and led, the MIA sponsored weekly mass meetings that rotated from church to church. The meetings, King later explained:

cut across class lines. The vast majority present were working people; yet there was always as appreciable number of professionals in the audience. Physicians, teachers, and lawyers sat or stood beside domestic workers and unskilled laborers. The Ph.D.'s and the no 'D's' were bound together in a common venture. The so-called 'big Negroes' who owned cars and had never ridden the buses came to know the maids and the laborers who rode the buses every day. Men and women who had been separated from each other by false standards of class were now singing and praying together in a common struggle. . . .

For those who seek in the American past glimpses of communities in which self-determination constituted a liberating passion rather than a distasteful chore, black Montgomery in 1955-1956 is a fine example. That community was probably never more free than during the boycott. So high was the level of engagement, so deep was the urge to reform, 'so profoundly had the spirit of the protest become a part of the people's lives that sometimes they even preferred to walk when a ride was available. The act of walking, for many, had become of symbolic importance.'

King's greatest contribution to the boycott movement lay in his ability to conceptualize and articulate a morally attractive vision of the protest. Two aspects of that vision were particularly influential. One had to do with his attentiveness to the morality of process. Arguing in Gandhi-like fashion that the means are the ends in the making, King emphasized in countless interviews, speeches, and articles the nonviolent, unembitterred, redemptive character of the protest. 'The Negro must work passionately and unrelentingly for full stature as a citizen,' King maintained, '[b]ut he must not use inferior methods to gain it. He must never come to terms with falsehood, malice, hate, or destruction.'

The second feature of King's contribution had to do with placing the protest in a framework that enlarged its meaning, that transformed it from a parochial to a universal struggle. It is true that he made frequent appeals to racial pride over the course of the boycott, challenging his black constituency to strike a blow for the betterment of the Negro's fortunes. But he also emphatically portrayed the boycott as a more ambitious and inclusive undertaking. 'We are not struggling merely for the rights of Negroes,' he declared one evening at a MIA prayer meeting. 'We are determined to make America a better place for all people.'

D. The Radicalizing of King and the MIA

The Montgomery story might have turned out far differently had the Montgomery City Lines been served by a different legal advisor. During the first few weeks of the boycott, at meetings sponsored by the Alabama Council on Human Relations (ACHR), the MIA attempted to negotiate a settlement on the basis of reforms that avoided directly challenging the legitimacy of de jure segregation. But the Company's attorney, Jack Crenshaw, successfully thwarted all attempts to compromise. Although he assured the MIA that, of course, the Company would discipline discourteous employees brought to its attention, he was unwilling to concede that there even existed a problem with drivers' demeanor toward black passengers. He reported that the Company did not anticipate hiring any black bus drivers. Most importantly, in terms of the evolution of the protest, he insisted from the outset that the MIA's proposals regarding altered seating arrangements contradicted state and municipal segregation statutes. According to Crenshaw, ' i f the blacks don't like the law we have to operate under, . . . they should try to get the law changed, not engage in an attack on our company.'

Crenshaw's argument powerfully strengthened the position of hard-line segregationists. At least one of the city commissioners appears to have favored compromising on the basis of the MIA's initial demands on seating. But Crenshaw assailed compromise on the basis of both policy and legality. Compromise was unwise, he contended, because it would only feed black defiance. 'If we granted the Negroes these demands,' he warned, 'they would go about boasting of a victory they had won over the white people.' Compromise was illegal, he insisted, because the city ordinance as written could simply not accommodate the reformed seating arrangement the MIA proposed.

The Code of Alabama provided that all transportation companies carrying passengers for hire 'shall at all times provide equal but separate accommodations on each vehicle for the white and colored races.' The Code further declared that the agent in charge of any vehicle 'is authorized and required to assign each passenger to the division of the vehicle designated for the race to which the passenger belongs.' The City of Montgomery's Code articulated essentially the same rule: ' A bus line in the city shall provide equal but separate accommodations for white people and negroes . . . by requiring employees to assign passenger seats . . . in such manner as to separate the white people from the negroes.' Nothing in the language of either of these provisions expressly precluded a system, in which, on a first-come, first-served basis, whites occupied seats from front to back and Negroes from back to front until all seats were taken. Moreover, a seating plan of precisely this sort was already in effect in other segregated southern transportation systems including, most notably, Mobile, Alabama.

Segregationists in Montgomery objected to this plan, however, on the grounds that it made no provision for what was to be done if a bus filled with Negroes who then departed at various times were left with only a scattered and mixed array of seats available for incoming white passengers. The MIA countered this objection by saying that if its plan were put into effect, Negroes would voluntarily move to vacant seats in the rear of the bus, while whites would move to vacant seats in the front. The MIA insisted that ' a t no time, on the basis of its proposal, will both races occupy the same seat.' Its assurances, however, were deemed inadequate. Crenshaw's reading of the relevant statutes frustrated the MIA's impulse to stop short of attacking the state's enforcement of racial separation per se. 'We are not asking an end to segregation,' King repeatedly stated early in the boycott. 'That's a matter for the Legislature and the courts. We feel that we have a plan within the law.' By blocking compromise. Crenshaw helped to radicalize King and the MIA.

The attack on the boycott was supported by other hardliners. These were people wholly committed to an unstinting defense of the old order. In their eyes, more was at stake in Montgomery than money or convenience. 'What they are after,' Mayor Gayle declared in reference to King and the MIA, 'is the destruction of our social fabric.' Acting on that belief, the commissioners ended negotiations and instead imposed a 'get tough' policy aimed at crushing the protest. Gayle vowed that the City Commission was 'not going to be part of any program that will get Negroes to ride buses again at the destruction of our heritage and way of life.'

City officials sought to break the boycott in three ways. First, they urged the white community to take a unified and aggressive stance toward the boycotters. Only a miniscule number of whites in Montgomery publicly supported the MIA. Those who did are noteworthy precisely because of their peculiarity: they were isolated, ostracized rebels. Both of Montgomery's white-owned newspapers attacked the MIA editorially. No predominantly white organization in the city associated itself with the boycott. The white ministerial association in the city refused even to meet with King. At the same time, perhaps because they expected the boycott to fold quickly, white supremacists at both the leadership and grass-roots levels initially found it difficult to take the boycott seriously enough to be genuinely alarmed. Upon realizing, however, that they confronted a protest movement that would not easily be subdued, white leaders increasingly began to mobilize the white population. Mayor Gayle, for instance, urged white employers to stop chauffering their boycotting employees and to avoid paying them "blackmail money' in extra weekly transportation fares.' More importantly, he and the other commissioners joined the Montgomery affiliate of the White Citizens' Council, an action that both reflected and accelerated its rapidly rising popularity. On February 10, 1956, at a Council rally featuring Senator James O. Eastland of Mississippi, twelve thousand whites filled the state coliseum in Montgomery in what was then one of the largest political gatherings in the history of the state.

No officials publicly encouraged private white violence against the boycotters, and when violence occurred, they quickly condemned it. On the other hand, a foreseeable consequence of the commissioners' 'get tough' policy was to unleash certain well-developed violent impulses. MIA leaders were threatened, and verbal intimidation was quickly superseded by potentially lethal force as bombs were detonated at the homes of King and Nixon.

A second strategy involved efforts to resuscitate the divisiveness that had characterized the political life of black Montgomery before the boycott. Rumors were planted accusing King of exploiting the boycott for personal gain. Leading white citizens suggested to older, conservative blacks that they were being unfairly overshadowed by an ambitious, young outsider. Mayor Gayle attempted to bypass King and the MIA altogether by reaching an agreement with three black ministers unaffiliated with the protest to end the boycott. These measures, however, were largely ineffective. Support for King within virtually all sectors of the black community grew over the course of the struggle. Not only did blacks, following the direction of the MIA, disregard the alleged settlement, but, under community pressure, the three ministers who met with the Mayor publicly disavowed having reached an agreement in the first place.

A third strategy involved harassment and punishment. The local military draft board reclassified the draft status of Fred Gray, the MIA's principal local attorney. The local prosecutor initiated (but later dropped) criminal proceedings against Gray for barratry. The police, aided by deputized unemployed bus drivers, ticketed black motorists in unprecedented numbers for speeding, waiting too long at stop signs, not waiting long enough, or overloading vehicles with passengers. King himself was arrested and jailed for allegedly driving thirty miles per hour in a twenty-five mile per hour zone.

Randall Kennedy, Martin Luther King's Constitution: a Legal History of the Montgomery Bus Boycott, 98 Yale Law Journal 999-1067 (April, 1989)(397 Footnotes Omitted)


A. The Trial of Martin Luther King

As the boycott wore on, courts became a central locus of struggle. Increasing their pressure, authorities prosecuted King for violating a state law that criminalized conspiring 'without a just cause or legal excuse' to hinder a business. Eighty-nine MIA dissidents were also indicted, but King was the only one tried.

Intended to suppress the Negro rebellion, the prosecution had precisely the opposite effect. It spurred the black community to further displays of unity, confidence, and self-sacrifice. Defendants joyously turned themselves in to the police. As King put it, ' t hose who had previously trembled before the law were now proud to be arrested for the cause of freedom.' Being arrested or jailed pursuant to the protest had become a badge of honor. The day the boycott leaders were arraigned, most of Montgomery's blacks shunned all motor transportation as a gesture of respect and solidarity.

The prosecution also advanced the cause of the boycott by elevating it to a major item of national and international news. For the first time, King and the boycott movement appeared on the front page of the New York Times and received notice by network television. The heady feeling of being at the center of the world's attention further encouraged Montgomery's rebellious black population.

The trial took place in the Circuit Court of Montgomery, Alabama, lasted four days--March 19-22, 1955--and was presided over by Judge Eugene W. Carter, who also served as the finder of fact since both parties consented to a non-jury trial. Judge Carter was familiar with the case; he had, on his own motion, brought to the attention of the grand jury the question of whether the boycott violated state law. He was familiar with the case in a broader sense as well. After Rosa Parks' conviction in the city Recorder's Court, she had appealed to the Circuit Curt, where Judge Carter again found her guilty of violating state and municipal law. His decision involved more than simply following precedent. He was himself an ardent segregationist who once sponsored a resolution at his church barring Negroes from the premises unless they were performing janitorial services.

The prosecutor, County Solicitor William Thetford, recalls having disfavored bringing criminal actions against the boycott leaders. His reluctance was not based on any qualms regarding the legalities of the matter. He simply believed that criminal prosecution would prove to be inadequately repressive since conviction would probably result in only small fines or brief jail sentences, a price the boycott leaders were gladly willing to pay. He therefore counselled the bus company to take action itself against the MIA.

Crenshaw vetoed Thetford's recommendation. He declined to seek an injunction because doing so would have entailed, in his view, abandoning the Company's position as an innocent, neutral party. It is difficult to fathom what he had in mind. Bringing the suit that Thetford suggested would not have necessitated directly taking sides with respect to the primary substantive issue in question--state-mandated racial segregation. All the Company needed to argue was that it was being irreparably injured by a boycott that violated state law and that its rights could only be secured by equitable relief. For the reasons Thetford outlined, obtaining injunctive relief would have been a more effective avenue of attack against the boycott. Inexplicably, Thetford waited several months (by which time, it was too late to matter) before he followed a variant of his own advice and sought an injunction in the name of the City against the MIA. That delay played a crucial role in the outcome of events.

The attorneys for the defense--Fred Gray, Arthur Shores, Peter Hall, and Orzell Billingsley--were the leading black attorneys in the state. The NAACP volunteered its General Counsel, Robert Carter, to help with the defense, but Judge Carter would not allow him to participate in the examination of witnesses. The judge justified his decision on the grounds that the case involved only a misdemeanor, that Carter was not a member of the Alabama Bar, and that the defendant was adequately represented by local counsel.

1. The Prosecution's Case-In-Chief

The prosecution's case-in-chief consisted of testimony that was apparently intended to show that the MIA was founded for the sole purpose of sustaining the boycott, that it was well-organized and funded, that King controlled the organization, that the MIA had rejected compromises offered by the Company and the City, and, finally, that Negroes stayed off the buses largely because of physical intimidation by the MIA. To establish the most damning of these allegations--the charge of intimidation--the prosecution first called ten whites as witnesses, each of whom testified that he was driving or riding on a bus in early December 1955 when it was struck by stones or gunfire. None of these witnesses offered testimony identifying or even describing the alleged assailants. They merely noted that the attacks occurred in black neighborhoods. Because no testimony linked either the MIA or King to the violence, the defense persistently objected to this testimony on the grounds that it lacked any reasonable evidentiary relationship to the indictment. Their objections, however, were typically overruled.

The prosecution also called as witnesses three blacks who claimed to have been harassed by boycotters. The first, Willie Carter, claimed that he was told that he would be beaten if he rode on a bus. Judge Carter sustained an objection to his testimony on the grounds that it failed to reveal a link between the person who allegedly threatened Carter and either King or the MIA.

Quickly thereafter, however, Judge Carter abandoned conventional evidentiary standards. Ernest Smith testified that a week after the boycott began, a man tried forcibly (albeit unsuccessfully) to prevent him from boarding a bus. This testimony should have met the same fate as Willie Carter's, for again no connection was established between the alleged altercation and King or the MIA. Judge Carter, however, overruled defense objections to Smith's testimony.

The third witness, Beatrice Jackson, testified that in February 1956, she was attacked by a man (presumably black) who allegedly hit her, cut her finger, and threatened that if he caught her riding a bus again he was going 'to cut [her] damn throat.' Her testimony, too, was devoid of anything that linked her alleged assailant to either King or the MIA. But, over objections, Judge Carter admitted it into evidence as well.

2. The Defense

The case-in-chief of the defense consisted primarily of putting the Montgomery City Lines on trial. First, the defense elicited testimony indicating that for several years prior to the boycott, the Negro community had expressed its dissatisfaction to the Company and the city commissioners. Next, it brought to the stand witnesses who testified about racially motivated mistreatment they had seen or suffered on the buses. During Sadie Brook's examination, for instance, the following exchange occurred:

Q: Have you heard the drivers call the negroes any names?

A: I have.

Q: What are some names you heard?

A: 'Black bastard,' and 'back up nigger, you ain't got on damn business up here, get back where you belong.'

Memories of verbal insults emerge repeatedly in the testimony of other defense witnesses as well:

Q: Have you heard the bus drivers call the negroes any names?

A: Yes, sir, I have.

Q: What do they call them?

A: They call them niggers.

Q: What else do they call them, have you heard any other expressions?

A: Yes, sir, . . . 'Apes.'

In addition to verbal insults, witnesses recounted other bitter memories. Richard Jordan spoke of the time that he and his obviously pregnant wife were forced to vacate two otherwise unoccupied seats in the white section of the bus. Martha Walker recalled an occasion on which she and her husband, a blind veteran who was on his way to obtain treatment at a Veterans Administration hospital, left a bus because the driver had rudely ordered them to the rear of the vehicle. Joseph Alford testified that a bus driver directed him to enter a bus by the rear after he had paid in the front; the bus then pulled off before he had a chance to reach the back door.

The second aspect of King's defense received far less elaboration than the first. It was based upon testimony regarding King's and the MIA's commitment to moral suasion rather than physical intimidation. Reverend Robert Graetz, one of the few white Montgomerians to support the boycott publicly, testified that he had never heard King or any other member of the MIA threaten anyone who decided to ride the buses. King himself stated that he neither practiced nor encouraged violence, and that, with respect to influencing other blacks' commuter habits, his only advice had been 'let your conscience be your guide.'

3. The Benefits of the Trial Despite the Verdict

Although the verdict, as expected, went against King, his constituents derived significant benefits from the trial, just as they had benefitted from the mass indictments. Trials presented one of the few arenas in the South where black professionals could meet their white counterparts in open competition. The tenacious defense offered by King's attorneys bolstered their own confidence and, by extension, the self-esteem of the black community as a whole. His lawyers provided a substantial psychological victory when they matched, or frequently outshined, their white counterparts, and when they succeeded in eliciting respect even from hardline segregationists. Silent applause erupted from the blacks in the courtroom when Mayor Gayle answered 'No, sir,' to a question propounded by one of 'their' attorneys.

The trial also facilitated the public airing of two aspects of southern race relations which, according to segregationists, did not even exist: the systematic mistreatment of Negro citizens and widespread opposition among Negroes to the segregation regime. Solicitor Thetford called to the stand as rebuttal witnesses bus drivers who swore that they had never called blacks 'niggers' nor encountered any racial difficulties. One recounted that he had even been accused by whites of showing undue favoritism to blacks. Others testified that they had applied the customs and rules of segregation even-handedly, ousting whites from seats in the black section of the bus just as blacks been ousted from seats in the white section. These efforts of rebuttal, however, were no match for the testimony given by the black Montgomerians who related the outrages committed against them. Their testimony further eroded the myth of symmetry that had long sustained the separate but equal doctrine. It belied the comforting assertion of the white power structure that, except for the agitation of a few troublemakers, segregation was acceptable to both whites and blacks. This testimony helped to create the image that, more than any other, publicized the iniquity of segregation: the image of a bus driver ordering a person to the back of the bus on account of nothing more than the color of her skin.

4. Problems in the Defense

The conduct of the defense was not without its problems. The first was rather straightforward: the transcript of the trial reveals that in several instances defense attorney Orzell Billingsley wholly neglected to familiarize himself with his own witnesses. On one occasion, for instance, he called to the stand for purposes of illustrating recent driver misconduct a woman who testified, to his evident surprise, that she had not ridden a bus since 1946.

The second problem is more complicated. It stems from the ambivalence of a defense torn between a strategy of putting the Company on trial and a strategy of evading the prosecution's charges by denying the allegation that King and the MIA had organized a boycott. Throughout the trial, witnesses friendly to the defense claimed that they were unable to recall what King had stated at MIA mass meetings or even whether he had spoken at all at meetings they had attended. Some witnesses suggested, moreover, that the boycott was not really a boycott at all but rather a concatenation of individual decisions that happened to have been made at around the same time.

The most striking example of this strategy of evasion was King's own testimony. He claimed, for instance, that he had not urged Montgomerians to refrain from riding the buses. But, as the prosecution pointed out, the founding resolution of the MIA expressly called upon 'every citizen in Montgomery, regardless of race, color or creed, to refrain from riding buses' until a suitable understanding had been established with the Company.

The problem with the strategy of evasion was that it rested upon an obvious falsity. This raises the thorny question whether, or to what extent, King and his allies owed a moral obligation of truthfulness to institutions that oppressed them. Lying would seem to pose something of a quandary for a protest that derived much of its inner and outer strength from its sense of moral purity. Furthermore, given that King's conviction was virtually certain no matter how he portrayed his role in the protest, the question arises why he adopted a position at trial so at odds with the candid defiance and plain-spoken eloquence that had helped to make the boycott the extraordinary event it had become. Perhaps he deemed evasion necessary to protect participants in the protest; to have been open and forthright on the witness stand might have risked exposing vulnerable people to extra-legal retribution. Perhaps, if pressed, King would also have noted that he was being tried, after all, in a court that lacked basic elements of justice. Although the nature of King's testimony raises an interesting philosphical problem, I shall not pursue it here. At this point, I simply want to establish that this aspect of King's defense is problematic and that the eventual victory of King and the MIA in the battle of Montgomery does not mean that everything they did was necessarily proper or efficacious; victors sometimes triumph despite themselves.

The law under which King was convicted exemplified the long-standing antipathy of the Alabama state government to dissident mass movements. It was enacted in 1921 as part of a package of anti-union statutes, one of which--a law that completely prohibited picketing--was invalidated in 1940 by the United States Supreme Court in Thornhill v. Alabama. Had King's attorneys succeeded in having the conviction of their client reviewed in a federal forum, the case might have become Thornhill II. They raised a variety of constitutional objections to his prosecution, the most persuasive of which included the following: (1) the anti-boycotting statute deprived King of due process of law by failing to appraise him precisely of the wrong he was charged with committing; (2) because King was 'selectively' prosecuted, the application of the law denied him due process and equal protection; and (3) the statute on its face and as applied abridged rights protected by the First Amendment.

By the time of King's trial, it was well-established as a matter of federal constitutional law that due process required a statute to be sufficiently clear to provide fair warning to the citizenry and guidance to judicial personnel charged with determining whether a violation had, in fact, occurred. Twenty years before King's prosecution, the president of a labor union in Alabama was charged and convicted of picketing a business 'without just cause or legal excuse.' In the course of invalidating that statute, the Supreme Court stated in Thornhill v. Alabama that ' t he phrase 'without just cause or legal excuse' does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning either inherent or historical.' Three years later, the Supreme Court of Alabama faced the argument that this very infirmity afflicted the state's anti-boycotting law; after all, it too conditioned the application of criminal law on whether the activity in question was undertaken without 'just cause.' Citing Thornhill, the Court of Appeals of Alabama invalidated the statute. The court of appeals was reversed, however, by the state supreme court. In an opinion that did not add specific content to the statute's amorphous language, the Supreme Court of Alabama simply declared that the statute's prohibition against interfering with another's business 'without just cause' was the same as prohibiting 'unlawful interference'--as if the mere invocation of the word 'unlawful' solved the problem of vagueness. The difficulty with the statute was its indefiniteness. The Supreme Court of Alabama failed to resolve that difficulty but simply papered over it with a term as amorphous as the one it purported to clarify.

The second objection raised by King's attorneys was that their client had been singled out for prosecution in a manner that was fundamentally unfair. This claim is related to the earlier point regarding vagueness. Because the statute was so indefinite, it greatly enhanced the risk that officials would use the law to target political rivals or enemies. Justice Frank Murphy had anticipated this problem in Thornhill when he decried '[t]he existence of . . . a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure. . . .' That state officials were 'out to get' King and the MIA for constitutionally dubious purposes is, in one sense, rather obvious. The White Citizens Councils systematically and openly boycotted those who resisted segregation. Needless to say, however, the Councils had no reason to fear state prosecution. For King and the MIA the situation was different. Announcing King's indictment, the grand jury declared: 'We are committed to segregation by custom and by law,' and 'we intend to maintain it.'

A court willing to act upon the obvious might have invalidated King's conviction on the grounds that, whatever the underlying merits of the case, Montgomery officials prosecuted King not to effectuate the state's antiboycotting statute, but rather to 'get tough' with anti-segregationist dissidents. But where officials are charged with selective prosecution, courts have rarely been willing to recognize the obvious. Beset by difficult problems involving institutional competence and community safety, judges have condemned invidious prosecution in the abstract but have generally declined to use judicial remedies against such wrongs.

Any knowledgeable observer of the crisis in Montgomery would have recognized that the primary motivation behind King's prosecution had little or nothing to do with the state's antipathy to boycotts. But it would have been difficult to prove in a legal sense that the prosecution had improperly focused on King while allowing others to violate the law. A small number of prosecutions had been brought (albeit a decade earlier) against persons other than black anti-segregationists. Furthermore, it could truthfully be said with respect to King and his co-defendants that no other group in Alabama history had ever staged such a large and well-publicized boycott. Finally, the grand jury's affirmation of segregation simply reflected a conclusion implicit in the indictment itself; insofar as segregation constituted a lawful policy of the state, opposition to it provided no 'just cause' for a boycott.

The third objection raised by the defense was that the prosecution violated King's First Amendment rights. Whether, or to what extent, a state may properly regulate consumer boycotts poses difficult legal questions. Boycotting, like any other political tool, can be used for both bad and good causes; wielded by the MIA, it aided desegregation, but wielded by White Citizens Councils, it aided the old order. Politically-motivated boycotts implicate weighty values, including freedom of association, expression, and political participation. But they also can impose heavy, perhaps even crippling, economic losses upon society and coerce individuals into speech or silence, action or inaction that they would otherwise avoid. Thus, no ahistorical, noncontextual, normative judgment can properly be made about a political boycott per se; its legitimacy depends upon the circumstances in which it occurs.

King was taken aback initially by criticism which equated the MIA's boycott with those sponsored by the White Citizens Councils. He was forced, he later recalled,

to think seriously on the nature of the boycott. Up to this time I had uncritically accepted this method as our course of action. Now certain doubts began to bother me. Were we following an ethical course of action? . . . Is it true that we would be following the course of some of the White Citizens Councils? Even if lasting practical results came from such a boycott, would immoral means justify moral ends? Each of these questions demanded honest answers.

King eventually concluded that the substantive differences between the two organizations constituted the most relevant line of distinction. 'Our purposes,' King declared, 'were altogether different':

We would use [the boycott] to give birth to justice and freedom, and also to urge men to comply with the law of the land; the White Citizens Councils used it to perpetuate the reign of injustice and human servitude, and urged men to defy the law of the land.

Had King's attorneys argued the issue, they would probably have insisted that, in this particular case, the organized, peaceful withdrawal of patronage, effected without picketing or any other sort of confrontational activity, constituted a form of speech entitled to First Amendment protection. Whether they would have prevailed in a federal forum is a close question, an examination of which reveals another facet of the ambiguous legal and moral climate that King confronted. On the one hand, in a series of cases involving efforts to suppress civil rights protests, the Supreme Court repeatedly invoked the First Amendment to rule in favor of besieged dissidents. In 1963, for example, in a decision that finally cleared the way for the NAACP to operate in Alabama after being shut down by the state for seven years, Justice Harlan characterized as a 'doubtful assumption' the proposition that 'an organized refusal to ride on Montgomery's buses in protest against a policy of racial segregation might, without more, in some circumstances violate a valid state law . . .' On the other hand, with respect to Negroes' resort to anti-discrimination consumer boycotts, judges in the 1950's--including some Supreme Court Justices--'appear ed inclined to apply the same rigid limitations on economic coercion that stifled labor boycotts in the first decades of the century.' Courts issued injunctions and awarded damages on the basis of findings that without 'just cause' the instigators of a given boycott had interfered with the legitimate expectations of a targeted enterprise. What was deemed to constitute 'just cause' was notably vague and on that ground alone raised (or should have raised) constitutional problems. The concept was defined more by the absence of certain prescribed features than by the presence of a given characteristic. Three elements commonly viewed as incompatible with just cause were (1) violence, (2) actions against secondary parties, and (3) attempts to obtain goals that contravened public policy. Viewing King's prosecution through the prism of these elements casts light on certain of the boycott's neglected dimensions.

The issue of violence can be dealt with quickly. We have already seen that, fairly considered, none of the prosecution's evidence linked King or the MIA with any violent actions. Nearly all of the violence that did take place was directed against the boycott and not in support of it.

A bit more complicated is whether the boycott was a secondary boycott, a widely outlawed genre of concerted activity in which one party boycotts a neutral party for the purpose of forcing the neutral party into supporting the boycotters' demands against the primary target of their action. To some extent, the boycott of the buses in Montgomery resembles a secondary boycott, for the MIA boycotted the Company even though its ultimate complaint was with the City and the state; after all, these were the entities that enacted the segregation laws, not the Company. On the other hand, on matters besides desegregation, what precludes the protest from properly being deemed a secondary boycott is that the MIA and the Company were directly at odds with one another. After all, the MIA demanded two things that were wholly within the Company's own power to provide: courteous treatment by drivers and the employment of Negro drivers on predominantly black routes. The Montgomery protest, in other words, was not one in which a boycott was imposed upon an 'innocent,' neutral party; the Company was as much a target of black anger as the city government.

The third analytical wrinkle implicating the 'just cause' test involves determining whether the MIA's demands conflicted with public policy. The demand for desegregated seating clearly contradicted Alabama's expressed commitment to racial separation. Federal courts would soon find that commitment to be a violation of the Constitution. But by boycotting in advance of that decision, the MIA put the bus company to a difficult choice between: (1) enforcing segregation and thereby incurring the heavy financial losses caused by the boycott, or (2) disregarding state law and thereby risking criminal sanctions and the loss of its franchise in the event segregation was upheld. Some judges may have considered the imposition of that choice as itself a form of illicit coercion. After all, the MIA marshalled the black community's economic power in a way that damaged a utility important to the entire community and did so although a judicial forum was available to resolve the controversy. On the other hand, it is difficult to generate much sympathy for the Company. It has neglected to discipline its own offensive drivers. It had helped to back itself into a corner by stubbornly insisting via Jack Crenshaw that the MIA's initial demands on seating were incompatible with existing segregation laws. It conducted itself for much of the boycott as an active arm of the state.

There is little doubt that if the prosecution were re-enacted today the federal judiciary would reverse King's conviction. One basis for this proposition is NAACP v. Claiborne Hardware Co., a 1982 decision in which the Supreme Court reversed a million-dollar judgment against the NAACP that resulted from a suit by white businessmen in Port Gibson, Mississippi, who accused the local affiliate of the NAACP and its parent organization of maliciously interfering with their businesses by sponsoring a boycott. The Court held that the First Amendment protected the non-violent aspects of the NAACP's boycott. The seven-year boycott in Port Gibson began in 1966 to protest injustices similar to those underlying the rebellion in Montgomery a decade before. The contexts are certainly distinguishable. The case against King involved a criminal prosecution; the case against the NAACP, a civil action. The case against King was predicated on nothing more specific than that he had led a political boycott lacking 'just cause.' The case against the NAACP was far more clearly based on findings that the boycott had been enforced, in part, by physical intimidation and violence directed by protesters against blacks who continued to patronize white-owned establishments. Each of these distinctions would favor King. If the civil suit against the NAACP in Claiborne Hardware violated the First Amendment, the same would be true a fortiori with respect to Alabama's criminal prosecution of Martin Luther King. Although elements in the prosecution of King may have enabled federal appellate courts to turn it into a vehicle for broadening Thornhill or anticipating Claiborne Hardware, the case actually amounted to nothing in terms for clarifying or creating federal constitutional doctrine. The case never made it to a federal forum; King lost his right to appeal because his attorneys filed the required papers tardily. In addition, there were no follow-up prosecutions, a consequence, according to King, of a deal in which the state dismissed charges against whites accused of perpetrating acts of racial violence.

B. City of Montgomery v. Montgomery City Lines

After King's trial, three other court cases significantly affected the course of the boycott. The first, City of Montgomery v. Montgomery City Lines, displayed a deep fissure in the white power structure. At the beginning of the boycott, the Company and the city commissioners responded in concert to the MIA's challenge. As the economic pressure on the Company increased, however, that unity deteriorated. Because blacks constituted at least seventy percent of the Company's riders, their withdrawal of patronage constituted a potentially crippling loss of revenues. To stem its losses, the Company suspended service over the Christmas holidays in 1955, reduced service thereafter, and obtained an increase in fares. As the financial pinch intensified, the Company distanced itself from its earlier embrace of segregationism. 'We would be tickled if the law were changed,' the Company's president declared early in April 1956. 'We are simply trying to do a transportation job, no matter what the color of the rider.' Later that same month, the Company attempted to avoid further financial losses by publicly directing its drivers to discontinue enforcing segregation. One consequence of the Company's action was the resignation of its counsel Jack Crenshaw, the lawyer whose advice had helped create the impasse from which Montgomery City Lines sought to extricate itself.

City and state authorities reacted strongly. Commissioner Sellers announced that police would arrest bus drivers who permitted desegregation and passengers who sat with passengers of another race. The President of the Alabama Public Service Commission informed the parent company of Montgomery City Lines that its subsidiary must adhere to state policy regarding segregation in transportation 'or suffer the consequences.' Finally, when Montgomery City Lines refused to rescind its new policy, the City sought an injunction in the county court to prohibit the Company from disregarding city and state segregation requirements.

Montgomery City Lines claimed that it had 'no choice' but to disregard state and local law because of a ruling--Flemming v. South Carolina Electric & Gas Co.--in which a federal court of appeals had held that South Carolina's requirement of segregation on buses violated the Constitution. As part of its decision, the court of appeals reinstated the complaint of a Negro woman who had sued the local bus company for damages because its agents had compelled her to change seats pursuant to the unconstitutional state law. The Supreme Court summarily dismissed the bus company's appeal. Montgomery City Lines interpreted the Supreme Court's action as a ruling invalidating segregation in intrastate transportation. The Company claimed that Flemming meant that it too would be legally vulnerable to suits for damages if it continued to enforce segregation.

Perhaps fear of damage awards did really motivate the Company's action. At the hearing on the City's application for an injunction, the Company lawyer stated that if Montgomery City Lines continued to enforce segregation, it risked being subjected 'to damage suits [that] could be multiplied almost beyond belief.' Even if authentic, however, that fear was probably unwarranted. Lily-white juries would have posed an imposing obstacle to any campaign aimed at reforming racially discriminatory corporate conduct by threat of litigation. In any event, lawsuits seeking individual damage awards do not appear to have been seriously considered as an option by the MIA. What would have constituted (and perhaps did, in fact, constitute) a more realistic fear was the financial burden the boycott imposed; faced with the prospect of indefinite rebellion by its Negro customers, the Company may well have been seeking some face-saving way to capitulate.

The Company, however, received no support from the Circuit Court of Montgomery County, for Judge P. J. Jones ordered it to continue enforcing state and local segregation laws. Judge Jones rejected Flemming, contending that it was 'not well reasoned [and] not sound law.' It was, he maintained, 'simply the guess of the Fourth Circuit Court of what the United States Supreme Court will hold.' Quoting the language of an 1899 Alabama Supreme Court decision, he asserted that ' i t is not an unreasonable regulation to seat passengers so as to preserve order and decorum, and to prevent contacts and collisions arising from natural or well known customary repugnances which are likely to breed disturbances by a promiscuous sitting.' He did acknowledge the existence of Brown v. Board of Education--but only barely. Far more relevant to him were the limitations imposed upon the federal government by the Tenth Amendment:

The Circuit Court of Montgomery County, Alabama, mindful of its obligation to support and maintain the United States Constitution, must declare that under the Tenth Amendment . . . the power to regulate the intra-state carriage of passengers on buses in Alabama is a power reserved to the State of Alabama. It has never surrendered this power to the United States government nor given it to the Supreme Court at Washington, and this Court will not be a party to filching the power from the State.

Judge Jones' injunction remained in effect until the Supreme Court itself decided whether Jim Crow seating aboard intrastate buses remained constitutionally permissible.

C. City of Montgomery v. Montgomery Improvement Association

The second case involved the City's belated attempt to obtain an injunction against the operation of the MIA's transportation system. The City argued that the MIA lacked a license and other requirements for operating a transportation system. There was little doubt that, absent some sort of unusual intervention, the City would obtain the relief it sought; after all, the case would be adjudicated by Judge Carter. The MIA attempted to elicit intervention by applying to federal court for an injunction restraining the City from taking legal action in state court against the car pool operation. But Federal District Judge Frank Johnson rejected the MIA's motion, concluding that the boycotters were not being 'threatened with any injury other than that incidental to the enforcement of city ordinances' and that their rights could adequately be protected by the normal course of litigation.

In the wake of Judge Johnson's abstention, Judge Carter granted, as expected, the injunction requested by the City. The Negro community would probably have been unable to carry on its boycott much longer without an alternative transportation system. However, on November 13, 1956--the very day that Judge Carter enjoined the MIA from continuing to operate its car pools-- the Supreme Court of the United States, in Gayle v. Browder, vindicated the boycotters' legal theory that de jure segregation on the buses violated the federal constitution.

D. Gayle v. Browder

Gayle v. Browder was the most significant of the suits that arose from the Montgomery Bus Boycott. Fred Gray filed it February 1, 1956, two days after King's home was bombed for the first time. Gray had previously asserted the unconstitutionality of bus segregation as a defense to the prosecution of Mrs. Parks, but had lost the right to appeal that issue because of a procedural mishap. In Gayle, Gray reasserted the claim but this time in a federal, as opposed to a state, court and on behalf of a plaintiff instead of a defendant.

Why did the MIA wait almost two months after Mrs. Parks' conviction before again challenging the constitutionality of bus segregation? King, Gray, and other MIA leaders were certainly aware of the opportunity for legal attack via motions for declaratory judgment and injunctive relief. Clifford Durr, a progressive white lawyer in Montgomery, urged this course of action, as did Robert Carter and other NAACP activists. Indeed, the NAACP refrained from providing financial support to the boycott in its early stages precisely because the MIA refused initially to include within its demands the abolition of segregation. King later expressed a preference for handling racial conflict through negotiation or mass action rather than litigation. At the time of the boycott, however, neither he nor any of the other leaders of the MIA articulated clearly the strategic calculations that led them to delay initiating the court proceedings which ultimately destroyed the legal basis of the City's recalcitrance.

One consideration that helps to explain the protesters' initial reluctance to sue is that they actually believed that the white power structure would strike some sort of compromise with them once it perceived the depth of their dissatisfaction with the situation on the buses. A concomitant part of that expectation and strategy involved requesting something that the local authorities could deliver legally--the amelioration, as distinct from the abolition, of segregated seating. It took time for King and his associates to realize that even that modest reform would appear imprudent and threatening in the eyes of many whites insofar as it represented a public demand that had been buttressed by black collective action.

Another consideration involved the social meaning of lawsuits. In Montgomery in 1955, filing a lawsuit challenging the constitutionality of state and local segregation statutes was a radical act. Many observers now tend to regard the legalistic attack on segregation as a rather conservative tactic. But at that time, the lawsuit was equally, if not more, provocative as the mass boycott. The boycott simply involved, after all, a mass withdrawal from the color line. It involved doing on a mass basis what individual blacks who owned cars had long done. In contrast, the suit attacking the constitutionality of segregation actually envisioned erasing and crossing the color line. The reason that King and the MIA resisted the NAACP's offer to help in such a suit is that they sought to avoid the reputation that made the NAACP 'enemy number one' to segregationists throughout the Deep South. They knew, as Taylor Branch observes, 'that white Alabama would react to the filing of a suit as the social equivalent of atomic warfare.' They therefore reserved their judicial option until all other avenues of relief failed.

Gayle was brought as a class action on behalf of four named plaintiffs and 'all other Negroes similarly situated.' Each of the named plaintiffs had either been asked by a driver or police officer to comply with the targeted segregation laws or had actually been arrested. It may appear in retrospect that Gayle should have been an easy case. After all, the Supreme Court had already decided Brown v. Board of Education. Brown, however, meant something far different in 1956 than it does now. Presently, it looms as a grand transformative decision, 'not only a major event in the history of race relations . . . but also a significant moment in American jurisprudence.' In 1956, however, its scope was uncertain.

In Brown, Chief Justice Earl Warren declared for a unanimous Court that 'in the field of public education the doctrine of 'separate but equal' has no place.' Clearly, the Court could have condemned all statutes requiring racial segregation, but that is not what it chose to do. Rather, the Court left open the possibility that de jure segregation might still 'have a place' in fields other than education.

Several federal district judges refused to extend Brown outside the context of public schooling. In Lonesome v. Maxwell, for example, a federal district judge denied relief to white and black plaintiffs who sought to enjoin Maryland and the City of Baltimore from segregating blacks at beaches, bath houses, and swimming pools. The opinion bears none of the hallmarks of segregationist defiance. It reflects a careful effort to understand Brown, that is, to determine whether the Justices meant to erase de jure segregation altogether or only in public schooling. Nothing that the Justices in Brown had repudiated the separate but equal doctrine in only one particular context, the district court decided that, at least with respect to recreational facilities, Plessy was still good law.

By the time that the three-judge panel in Gayle was ready to announce its decision, the district court in Lonesome had already been reversed by a court of appeals that was subsequently affirmed by the Supreme Court. By that time, the Court had reversed a district court's refusal to extend Brown to public golf courses. Yet despite the tilt of Supreme Court precedent, disposing of Gayle proved to be a difficult and controversial undertaking.

Judges Richard T. Rives and Frank Johnson forged the majority that invalidated the city ordinance and state statute compelling segregation in intrastate transportation. They believed that in light of Brown and subsequent decisions extending Brown to other settings, they could no longer 'in good conscience perform their duty as judges by blindly following Plessy .' They concluded that Plessy had been impliedly overruled and that there existed 'no rational basis upon which the separate but equal doctrine can be validly applied to public carrier transportation within the City of Montgomery. . . .' The third member of the panel, Judge Seybourn Lynne wrote a passionate dissent. He noted that the Supreme Court had not seen fit to repudiate Plessy explicitly and complained that the willingness of lower court judges to disregard Supreme Court precedent in the absence of express directions from the Justices constituted ' a comparatively new principle of pernicious implications.' He acknowledged that 'the trend of the Court's opinions was to the effect that segregation is not to be permitted in public facilities furnished by the state itself. . . .' But he insisted that 'it does not follow that segregation may not be permitted in public utilities holding non-exclusive franchises.'

A strong allegiance to stare decisis and hierarchical authority within the federal judiciary would seem to counsel allowing only the Justices themselves to overrule Supreme Court precedent. Furthermore, as noted above, the Brown opinion itself invited a rather narrow reading. Judge Lynne, however, should have been put on notice by the Court's subsequent decisions that the Court meant for Brown to extend beyond the schoolhouse. Moreover, his attempt to distinguish Gayle on the basis of the bus company's non-exclusive franchise was wholly specious; the nature of a given carrier's franchise was irrelevant since the city and state laws in question compelled all carriers to segregate passengers on the basis of race.

The district court rendered its decision on June 5, 1956. But the ruling led to no concrete change in the conduct of the parties, for the panel stayed its judgment and award of relief during the pendency of the City's appeal to the Supreme Court. For five months after the district court's decision, the boycott dragged on. Then, finally, on November 13, 1956, the Supreme Court issued a per curiam opinion affirming the district court: Per Curiam: The motion to affirm is granted and the judgment is affirmed. Brown v. Board of Education . . . Mayor and City Council of Baltimore v. Dawson . . . Holmes v. Atlanta.'

The Court's summary disposition of Gayle represented the continuation of a strategy the Justices informally formulated immediately after Brown: policing Brown's enforcement and enlarging its ambit in as low-key and uncontroversial a manner as possible. The Court's injunction that Brown be implemented 'with all deliberate speed' was one facet of this strategy. Another facet was total avoidance. The Court simply refused, for instance, to consider a case involving the constitutionality of a state anti-miscegenation statute even though it had to torture jurisdictional rules to do so. A third element of this strategy was summary treatment of cases involving the validity of segregation statutes outside the context of public schooling. Between 1955 and 1960, the Court was forced, on occasion, to confront in a direct and plenary manner the political story that Brown precipitated. In 1958, for instance, in a dramatic special session, the Court denied a request from a local school board to further delay desegregation even though the board accurately warned that enforcing Brown would risk violence. By and large, however, the Justices strove to avoid public prominence.

The Court's resort to summary dispositions entailed certain costs. Summary dispositions nourished accusations that the Justices were conducting themselves in an unprincipled and high-handed manner. Moreover, the failure to explain the basis for their decision retarded public understanding--and perhaps the Justices' own self-understanding--of just what it was about de jure segregation that made it in all circumstances incompatible with the Constitution. One can also understand how, from a certain perspective, the Court's judgment is disturbingly bare in light of the grandiloquent protest that gave rise to the case; Gayle fails even to mention that it was effectively overruling Plessy v. Ferguson.

Ultimately, though, a united Court armed the boycotters with the legal backing that they desperately sought and needed. Whatever costs were associated with the form of the judgment were probably worth paying if the alternative would have been a substantial crack in the Court's unanimity. Moreover, to some, the very muteness of Gayle spoke volumes insofar as it indicated that, at least for the Justices, the constitutional question of de jure segregation was no longer open to real debate.

The Supreme Court's decision did not immediately end the boycott. The City petitioned the Court to reconsider their ruling and indicated that it would demand the enforcement of segregation on the buses until all of its legal avenues for relief has been exhausted. The commissioners were determined to sustain the life of Jim Crow seating to the bitter end. In contrast, upon learning of the ruling, the MIA immediately decided to suspend the boycott, though it requested boycotters to delay an actual return to the buses until all legal resistance by city officials had been overcome. In the meantime, the MIA prepared the black community for the imminent prospect of desegregated seating, emphasizing in speeches and leaflets the desirability of peace and good-will. The time had come, King declared, to 'move from protest to reconciliation.' On December 17, the Court rejected the City's petition, and on December 20, the official papers announcing the Court's action were delivered to city officials. Early the next morning, Martin Luther King, Jr., and other leaders of the boycott boarded a bus and without incident occupied seats near the front in the section that had previously been reserved for whites only.


The Montgomery Bus Boycott has attained a secure and honored niche in the Nation's public memory. Indeed, it has become something of a legend. One problem with making legends is that the process engenders a distortive sentimentality. We must thus be careful to prevent admiration for the boycott from exaggerating its accomplishments. The concerted withdrawal of Negro patronage is not what finally desegregated the buses; successful litigation constituted the decisive action. The economic pressure of the boycott forced Company officials to break ranks with the city commissioners. Its moral pressure impelled a few white Montgomerians to commit the apostasy of actually siding with King. But the boycott on its own did not succeed in inducing the political authorities to make any substantial concessions.

Even within the small social space created by the boycott and its attendant litigation, the transition from segregation was slow and difficult. Browder largely stilled official resistance to desegregation aboard local buses. Moreover, many white Montgomerians quietly accepted the new dispensation. But others bitterly and vocally resisted, refusing to sit beside Negroes or in what was formerly the Negro section of buses. An elderly man who stood in the front of a bus despite the presence of vacant seats in the rear spoke for a substantial number of whites when he stated that he 'would rather die and go to hell than sit behind a nigger.' Some die-hards even went so far as to incorporate a private club--the Rebel Club--for the purpose of providing a transportation system available only to whites.

Blacks were often the victims of segregationists' retribution. The evening that the Supreme Court decided Browder, forty carloads of robed and hooded Ku Klux Klansmen rode through Negro neighborhoods honking horns and shining lights into residences. White 'traitors' were targeted as well. The Alabama Association of White Citizens Councils urged 'the real white people of Alabama never to forget the names Rives and Johnson.' The judges were deluged with threatening calls and letters. A cross was burned on Judge Johnson's lawn and the gravesite of Judge Rive's son was desecrated.

Segregationist resentment expressed itself in other potentially lethal forms. Two days after the inauguration of desegregated seating, someone fired a shotgun through the front door of King's home. A day later, on Christmas eve, white men attacked a black teenager as she exited a bus. Four days after that, two buses were fired upon by snipers. In one sniper incident, a pregnant woman was shot in both legs. Then, on January 10, 1956, bombs destroyed five black churches and the home of Reverend Robert S. Graetz, one of the few white Montgomerians who had publicly sided with the MIA.

The City Commission suspended bus service for several weeks on account of the violence. When the violence subsided and service was restored, many black Montgomerians enjoyed their newly recognized right only abstractly; they avoided the anxiety-producing friction that attended what the segregationists called 'race mixing.' The boycott had involved communal withdrawal from the presence of the color line. But for a black rider actually to cross the color line was a different matter that involved an exercise of individual will and personal vulnerability that for many proved immensely and understandably daunting. For others, the problem involved a loss of that heightened sense of duty which, during the protest, had generated such glorious departures from normalcy. In the aftermath of the boycott the gravitational pull of old habits exerted their force: 'When we first started getting back on the buses I sat up front,' one former boycotter recalled, ' b ut then I began sitting in the back--I wasn't afraid or nothing: it's just that I was accustomed to it.'

To the extent that the color line was crossed, the breach extended only to the buses. In practically every other setting, Montgomery remained overwhelmingly segregated, largely because of the popularity (among whites) of sentiments like those expressed by Mayor Gayle when he stated in response to the decision bearing his name:

The recent Supreme Court decisions . . . have seriously lowered the dignified relations which did exist between the races in our city and in our state. . . . The difficulties [which the invalidated laws were] meant to prevent and the dignities which they guard are not changed here in Alabama by decisions of the Supreme Court. . . . To insure public safety, to protect the peoples of both races, and to promote order in our city we shall continue to enforce segregation.'

Underscoring their commitment to the old order, the city commissioners adopted, on March 19, 1957, a city ordinance declaring it:

unlawful for white and colored persons to play together, or, in company with each other . . . in any game of cards, dice, dominoes, checkers, pool, billiards, softball, basketball, baseball, football, golf, track, and at swimming pools, beaches, lakes or ponds or any other game or games or athletic contests, either indoors or outdoors.

In the early 1960's, Montgomery began formally to rescind such laws, but even that sometimes failed to deprive them of their power. In March 1960, one week after Montgomery rescinded its ordinance requiring segregation in restaurants, ten white college students from Illinois, their professor and his wife, and four Negroes associated with the MIA were arrested in a black-owned retaurant merely for eating together and talking with one another. A little over a year later, in May 1961, President Kennedy was forced to dispatch federal marshalls to Montgomery to quell violence directed against an interracial group of 'Freedom Riders' who sought to test whether southern jurisdictions were complying with federal laws that prohibited racial discrimination in interstate transportation. Resentful of the MIA's success in formally desegregating intrastate transportation, hard-line segregationists became apoplectic in the face of interracial groups of 'outsiders' whose stated purpose was to exercise all of the legal rights they possessed as travellers in interstate commerce. The following description of the attack against the Freedom Riders helps to illustrate the extent to which King's hopes for reconciliation in a desegregated Montgomery were still virtually utopian more than five years after Gayle.

[A] mob of several hundred launched a vicious assault on the riders. A number of the youths were severely beaten, and one black seminary student . . . was knocked unconscious with baseball bats. John Lewis [a leading activist who is now a member of the United States House of Representatives] was hit by a wooden crate and while lying in the street was served with a state court injunction against the journey by an Alabama official. The mob assailed reporters and photographers, black passersby, and whites who appeared sympathetic to the protesters. One black who was not a Freedom Rider was doused with kerosene and set afire. John Seigenthaler [an aide to United States Attorney General Robert Kennedy] was clubbed from behind while attempting to help one rider get away and was left unconscious on the sidewalk for nearly half an hour. White ambulances refused to come to the scene.

Even with respect simply to intrastate transportation, segregation did not immediately end throughout the South in the wake of Gayle. Some places did desegregate rather quickly. At the beginning of 1957, the Southern Regional Conference (SRC) reported that 21 southern cities had ended compulsory segregation in local buses without court action. But other municipalities adopted many of the same stalling tactics that effectively stymied enforcement of Brown. In some jurisdictions the color line in seating remained intact as officials insisted that they would maintain segregation on city buses until courts specifically invalidated their local ordinances. It was not until 1957-1959 that litigation brought desegregation to the buses of such major southern cities as Miami, New Orleans, and Atlanta. In other jurisdictions, officials sought to avoid desegregation by abandoning openly segregatory laws while enlarging the discretionary powers of bus drivers who then proceeded to recreate Jim Crow patterns. The City Commission of Tallahasee, Florida, for instance, replaced a traditional segregation ordinance with one that made it a crime to occupy any seat or standing area other than one expressly assigned by the bus driver.' The drivers allowed the rear of the bus to be nonsegregated, but refused to assign blacks to seats in what had previously been formally designated as the white section.

In still other jurisdictions, the color line remained intact persuant to a strategy of privatization, which entailed rescinding official requirements for racial separation and allowing private parties to shoulder the burden. Boman v. Birmingham Transit Co., a case arising from Birmingham, Alabama, shows the move to privatization, displays the way in which some district judges were willing to allow that strategy to succeed, and anticipates the doctrinal issues that awaited courts when the Civil Rights Movement broadened its attack to include not only de jure segregation but racial discrimination that, in an important sense, really was 'private.' After being sued by blacks who were intent upon enforcing Gayle, officials in Birmingham replaced the city's traditional segregation ordinances with new provisions making no mention of race. These provisions authorized carriers to 'promulgate such rules and regulations for the seating of passengers . . . as are reasonably necessary to assure the speedy, orderly, convenient, safe and peaceful handling of passengers.' They also provided that a willful refusal to obey the request of a driver enforcing the company's seating policy constituted a breach of the peace. At the same time that city officials made these changes, the bus company painted signs in the front and rear of its buses which read: 'White Passengers seat from front, Colored Passengers from Rear.' Soon after the signs were painted, a group of blacks disregarded them by occupying seats near the front of a bus. When the blacks refused to obey the driver's request that they move to the back, they were arrested for breach of the peace and related infractions. They subsequently sued the bus company and the Birmingham Board of City Commissioners, charging, among other things, that the signs violated the Constitution by designating seating according to race.

Judge Harlan Grooms held that the racially designated seating did not violate the constitutional rights of the plaintiffs because it did not constitute state action. He emphasized that according to settled law the Fourteenth Amendment constrained only governmental and not private decisions involving race. According to Judge Grooms, the arrangement challenged in Boman was that of a private business and thus 'a matter between the Negroes and the Transit Company.' In his view, the city could not longer be charged with supporting segregation on the buses. The new ordinance mentioned no racial discrimination on its face. Moreover, the judge noted that ' t he evidence wholly fails to reveal that city officials had formed any policy, actually or tacitly, to apply the new ordinance in a racially discriminatory manner.' He recognized that the incident leading to the arrest of the plaintiffs arose only six days after the enactment of the new ordinance, but concluded that this one incident showed no pattern of discriminatory state action. The arrest, moreover, had been made without the knowledge or permission of the city commissioners. True, the company's signs did perpetuate racial separation. But the decisive point to Judge Grooms was that segregation remained intact on the buses not because of any official action but rather because it was desired by the company.

The district court's judgment was reversed by a panel of the Fifth Circuit that included the court of appeals' most progressive members on matters of race--Judges Elbert Tuttle and John Minor Wisdom--and its most reactionary member--Judge Ben F. Cameron. Over Cameron's dissent, Tuttle and Wisdom held that Birmingham was legally implicated in the bus company's racial policy. While their opinion purported to recognize the limits of the state action doctrine, it actually demonstrated that doctrine's accordion-like pliability:

Of course, the simple company rule that Negro passengers must sit in back and white passengers must sit in front, while an unnecessary affront to a large group of its patrons, would not effect a denial of constitutional rights if not enforced by force or by threat of arrest and criminal action. Where, as here, the City delegated to its franchise holder the power to make rules for seating of passengers and made the violation of such rules criminal . . . we conclude that the Bus Company to that extent became an agent of the State and its actions in promulgating and enforcing the rule constituted a denial of the plaintiffs' constitutional rights.

This language can be read narrowly to embrace only those situations in which municipalities expressly delegated to franchise holders the power to make seating rules and explicitly criminalized infractions of such rules. On the other hand, it could be read broadly to embrace any situation in which a private bus company sought to enforce racial separation by calling upon public police--the situation in which most bus companies and other private businesses would find themselves if confronted by anti-segregationist demonstrators. This, however, is not the place to explore state action theory and the problem raised by so-called 'private' racial discrimination. That issue posed the main theatre of struggle in the next phase of King's career, the phase memorably punctuated by the 'Letter from a Birmingham Jail,' the 'I Have a Dream' speech at the March on Washington, and the Civil Rights Act of 1964. For present purposes, the importance of Boman resides in the vivid way it illustrates the recalcitrance of the old order. Because of white resistance, the conquest of segregation was forced to proceed inch by inch and issue by issue with exhausting and embittering exactitude.

Montgomery and its aftermath teach lessons that reflect certain truths about the Civil Rights Movement as a whole. One is that the Movement wrought deep and lasting changes in the United States. Another is that law, litigation, and lawyers played a significant and frequently praiseworthy role in accomplishing the Movement's aims. Certain currents in the historiography of the Movement suggest that it may be useful to argue self-consciously in favor of these propositions even though some observers may well consider them obvious.

Some commentators resist the suggestion that the Civil Rights Movement was largely successful. Their resistance derives from two sources. One is a fear that emphasizing the success of the Movement will only facilitate complacency in a political culture prone to self-congratulation. The other is a bitter disappointment with patterns of income, housing, education, health-care, and vulnerability to crime that remain racially disparate. Those who emphasize continuities in the subordinate position of the Negro both before and after the Second Reconstruction, are often willing to concede that the Movement succeeded in removing formal impediments that prevented blacks from enjoying opportunities on the same basis as whites. But they insist that that success was shallow, a boon only to those blacks who possessed the wherewithal to walk through newly-opened doors. King himself articulated this view in his career, questioning the value of having the right to buy a hamburger at a restaurant if one lacked the money to purchase it. Others have even suggested that the eradication of formal barriers coupled with the perpetuation of substantive inequality has actually resulted in a net loss for blacks as a group. On the one hand, the demise of rigid, formalized racial barriers have allowed the most resourceful blacks to 'escape' confinement in all-black institutions, depriving these potential bases of power of valuable talent and leadership. On the other hand, formal reforms in laws and practices have induced large numbers of whites (and a substantial number of blacks as well) into believing that 'racism is dead' and that, therefore, any further difficulties experienced by blacks as a group is either 'their own fault' or indicative of incapacity.

As to the role of law, courts, and lawyering, the perspective against which I argue views the legal apparatus as having been either largely irrelevant--a mere recorder of results determined in other arenas--or largely confining. According to this perspective, the legal apparatus deradicalized the Movement by channeling powerful energies into readily controllable, legalistic forms. This strand in the historiography of the Civil Rights Movement is critical even of the lawyers who worked on behalf of the Movement. Too often, the argument runs, the lawyers' tendency was to subordinate the aspirations of their clients to the dictates of legalism.

While I find much of value in this perspective on the Movement, the thrust of my analysis is different in significant respects. First, I emphasize that formal rights matter. What are now sometimes referred to as 'mere' formalities were anything but 'mere' in the context that King confronted. Negroes were willing to struggle to be called 'Mr.' or 'Miss' or have the right to sit anywhere on a bus because formal racial distinctions exercise a symbolic power that is real, albeit subtle and nonquantifiable. Invidious racial distinctions stigmatize those upon whom they are branded with baleful consequences that ramify throughout the society, corrupting both those who are privileged and those who are victimized. It does make a difference--a huge difference--that largely because of reforms won by the Movement, blacks are legally protected in the most significant domains against invidious racial discrimination. It makes a difference even when those laws are evaded and even to those who, lacking resources, cannot take advantage of their rights. Frederick Douglass put it best in the course of responding to those who suggested that the loss incurred by the partial invalidation of the Civil Rights Act of 1875 was of little real significance because the bill could not be enforced anyway. 'There is some truth in all this,' Douglass observed, 'but it is not the whole truth. The Act like all advance legislation, was a banner on the outer wall of American liberty, a noble moral standard, uplifted for the education of the American people. There are tongues in trees, books, in the running of brooks,--sermons in stones. This law, though dead, did speak.' The law created by the pressure of the Civil Rights Movement also speaks, has widely been heard, and is still very much alive.

There are hard empirical facts that can be marshalled to support the proposition that in terms of employment, voting, and education, the Movement effected a remarkable transformation in the power and opportunities available to black Americans. That proposition is not defeated by pointing out that more affluent blacks have been the ones most able to benefit from the demise of formal racial restrictions. First, in at least some notable contexts, the poorer sectors of black communities were the ones most directly benefitted by desegregation; prior to the struggle in Montgomery, middle-class blacks had avoided Jim Crow seating by driving their own cars.

Second, those who deprecate the accomplishments of the Movement by reference to the consistently dismal state of the black underclass measure the Movement by indicia that fail to correspond to its primary aim. The central goal of the Civil Rights Movement was to eradicate racial barriers that impeded the aspirations of blacks. Over time, some Movement leaders, including King himself, became increasingly aware of the intimate relationship between racial and socio-economic impediments and tried to broaden and reorient the Movement's aims; indeed, some of the Movement's personnel joined the 'war against poverty.' But for the most part the Movement remained focused rather narrowly on racial as distinct from class discrimination and achieved in that concededly limited area rather remarkable results.

Another reason for emphasizing, as I do, change over continuity, is that the most impressive and consequential accomplishment wrought by the Movement is now so often overlooked: the transformation of the consciousness of millions of Americans, but particularly southern blacks. The arduous, painful, and dangerous process of creating new rights and exercising old ones forced blacks to confront not only their oppressors but also themselves. More specifically, they were forced to confront and overcome the inhibiting feelings of inferiority the oppression often breeds. That is why to Martin Luther King, the primary importance of the Montgomery Bus Boycott resided in its demonstration 'to the Negro . . . that many of the stereotypes he had held about himself are not valid.' In Montgomery, as in other locales, the act of attempting to change the world broke the spell of Negro acquiescence.

Law played a central part in this as in other aspects of the Movement's struggle. King and his associates met defeat of various sorts in the legal arena. But much of the current thinking about law and its relationship to the Movement unduly minimizes the benefits that blacks received through their participation in state and federal judicial forums. Litigation served as the Negro's most successful and aggressive form of political activity throughout the first half of this century. And even after that activity was supplemented by other forms of protest--boycotts, sit-ins, marches, riots--litigation continued to serve valuable functions apart from helping to shape the legal issues at stake. Courtrooms provided one of the few contexts in American history in which a cadre of Negroes--the Movement's black lawyers--bested whites in an intellectual-professional setting on a consistent and highly-public basis. When Alabama prosecuted King for violating the state's anti-boycotting statute, his attorneys transformed a hostile courtroom into an empowering forum in which the target of state power fared better politically than the state itself. Similarly invigorating was Gayle v. Browder. To be sure, the judicial victory alone would not have been nearly as significant without the mass boycott from which it arose, for the boycott facilitated active participation on a scale impossible for any lawsuit. At the same time, it is important to appreciate that without the suit and the eventual support of the Supreme Court, the boycott may well have ended without attaining any of its expressed goals, a result that may have been cruelly discouraging. In retrospect, it appears that King and the MIA reaped the best of both extra-legal protest and litigation, the grass-roots participation generated by the former and the official legitimation bestowed by the latter.

The successes of the legal struggle helped to create a state of mind the was absolutely essential to the Movement, a consciousness that King articulated with more power and grace than anyone: a sentiment of righteous outrage. As Barrington Moore aptly observed:

People are evidently inclined to grant legitimacy to anything that is or seems inevitable no matter how painful it may be. Otherwise the pain might be intolerable. The conquest of this sense of inevitability is essential to the development of politically effective moral outrage. For this to happen, people must perceive and define their situation as the consequence of human injustice: a situation that they need not, cannot, and ought not to endure.

By winning in court and forcing segregationists to go outside the law to maintain their power, the Movement's litigators helped to erode the facade of inevitability that surrounded the segregation regime and to create the perception of a gap between right and reality, authority and force. Here it is useful to recall the speech with which King launched the boycott in Montgomery. 'We are not wrong,' he told his listeners. For 'if we are wrong, then the Supreme Court of this Nation is wrong.'

The boycott made black Montgomerians aware of themselves as a community with obligations and capacities to which they and others had previously been blind. On the eve of the boycott, few would have imagined the latent abilities that resided within that community. The protest elicited and clarified those abilities. On the eve of the boycott, few black Montgomerians would have considered themselves as persons with important political duties. The protest inculcated and enlarged their sense of responsibility. Moreover, by publicizing their willingness and ability to mobilize united opposition to Jim Crow practices, the protesters in Montgomery contributed a therapeutic dose of inspiration to dissidents everywhere. Later developments would attest to the influence of the boycott as a role model that encouraged other acts of rebellion. Participants in subsequent protests remember Montgomery as a distinct, encouraging presence.

With the whole world watching, black Montgomerians grew in stature to fill the roles that fate and their own efforts had created for them. Indicative of the community's growth was the steadfast support that enabled Martin Luther King to emerge as the leader of the boycott movement. Factionalism had previously crippled potential black leaders. During the boycott, however, that problem was largely overcome. Promoting King's leadership constituted an achievement along another dimension as well. For the support he received displayed not only an impressive unity but also good judgment. King vindicated the tremendous investment staked upon his ability to lead and represent the black dissident community of Montgomery. He did so by recognizing not only the power but also the limits of law. 'The enforcement of the law,' he later observed, 'is itself a form of peaceful persuasion. But the law needs help.' He continually provided that help by presenting to the nation in a most attractive form the case for protest and against segregation. No one in his generation would prove to be as talented as he in the art of public persuasion. And no period in his illustrious career would prove to be more impressive or consequential than the year of the boycott, what King once described as 'our twelve months of glorious dignity.'

Using Feathery Birds to Disguise Hateful Speech: Avatar, Hillary: the Movie, Citizens United, and How Birds of the Same Feather Flock Together

Angela Mae Kupenda

Excerpted from:  Angela Mae Kupenda, Using Feathery Birds to Disguise Hateful Speech: Avatar, Hillary: the Movie, Citizens United, and How Birds of the Same Feather Flock Together, 49 Gonzaga Law Review 1- 21 (2013-2014) (105 Footnotes)


Angela Mae KupendaIn America, we are consciously and subconsciously influenced by abundantly present messages in commercial speech, television, and film viewed for entertainment purposes. The influence can be penetrating, even devastating, especially because of racial messages about nonwhites. For example, a study by university researchers found that watching television lowers self-esteem in white female children and in black children, while elevating self-esteem in white boys. This effect seems logical given the predominant messages in many shows. In film and television, white boys find strong images and likenesses in white men who have economic, family, and political control. White girls suffer a loss of self-esteem as many television shows depict white women as weak, submissive, passive, and lacking power, or even in need of being saved by white men. Black girls and boys confront images of actors who resemble them in color and who are in poverty, violent, imprisoned, on welfare, clown-like, and generally lacking power over their own *3 destinies. Not surprisingly then, the message absorbed by children from media is that white males are worthwhile and are entitled to power and success, while other groups are not.

The broadcasted, and often commercial, messages do not only affect young children. The messages can also affect those trained to be critical, independent, and analytical thinkers. A number of years ago in my civil rights course, a third-year law student, who was nonblack and nonwhite, approached me after class to talk. She seemed to be quite excited about the reading she had completed for that day's class. "Wow!" she exclaimed. "Before I completed our reading for today I did not know that any poor, minority women cared about their children." My response was, "Oh my . . . where did you get an idea like that?" The law student, who had excellent grades, answered, "From television and from the movies. And I always thought that if it were not true, it would not be on television." Even a future lawyer, then, can be cajoled by the power of the marketplace to facilitate skewed views of worthiness and justice. This essay is a necessary response to these subtle messages of hate and racial disdain that affect our conceptions unwittingly, as the messages become disguised as speech for entertainment or speech for commercial purposes only.

* * *

Hate-filled messages promoting racial inequality are not just found on certain organizations' websites, in political protests, or certain groups' products. The messages can even slip into our hours of entertainment in front *4 of the television or while watching movies. This essay is about those subtle messages and the negative influences of these messages, especially as illustrated by one film in particular--James Cameron's Avatar. But the film illustration that follows is only the first major point of this essay. The second point is that the negative influences of these racial messages in the entertainment or commercial market should be important in the formulation of freedom of speech legal jurisprudence.

How these messages may be accounted for becomes difficult given the United States Supreme Court's controversial holding in Citizens United v. Federal Election Commission, where the Court declared that a corporation's speech was political speech, thus giving for-profit and nonprofit corporations the same protection for political speech as provided to individuals. According to the Court, governmental restrictions on a corporation's political speech must satisfy strict scrutiny, the most exacting form of judicial review of governmental actions.

*5 In Citizens United, a corporation's management attempted to use Hillary: The Movie, a film, to influence voters to reject Hillary Clinton's presidential candidacy. The corporation seemingly thought that Hillary Clinton would be the Democratic candidate for President in 2008, and wanted to depict her as unfit for the Presidency. The Court, over a strong dissent, broadly held that restrictions on corporate political speech must have a compelling governmental interest, and the restrictions must be narrowly tailored to that interest. This strict scrutiny of governmental regulations is an exacting level of review and is the highest protection (from government) given by the Court to speech and other individual rights.

If a corporation has the same political speech rights as an individual, the Court's holding in Citizens United potentially gives broad protections to corporate falsehoods, as individual political speech can receive expansive protection even if it is false. If the law considers this corporate speech political, even though it may be commercial for-profit speech, then, under present jurisprudence, expensively funded, corporate political speech seemingly is also entitled to the highest protection, just like individual political speech. Thus, corporately funded political falsehoods can be labeled as political speech. These corporate falsehoods could then flood the market, especially the marketplace of ideas about racial minorities or nonwhites.

*6 If we take Citizens United several steps further, false, misleading, and even hatefully targeted speech about race can be disguised as commercial or entertainment speech and still receive the protection given to political speech. This communication of hateful speech, seemingly as entertainment or com-mercialism, is quite potent as it affects us when we are unaware and simply being entertained. When instead, we are being indoctrinated to believe in continued messages about racial inferiority of nonwhites. Hence, commercial speech and film can be used as a disguise for politically, racially hateful content. This means the Court elevates racially hateful messages to receive special protection whether they are an individual's political message or the disguised mass message of a corporate giant. Therefore, the truth of racial equality about nonwhites can never be reasonably expected to win out in the marketplace, because of the corporately funded and disguised falsehoods and hate that may flood the marketplace. This hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech.

This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial *7 media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out making the points of this essay not critically necessary)? Second, what are the race messages in the film, Avatar, which will be used here for illustrative purposes? Further, in giving corporate political speech the same protection as individual political speech, the majority and the dissent in Citizens United overlooked critical First Amendment jurisprudence, as it failed to distinguish corporate commercial speech from corporate political speech. So the third question asks what is the likely, or feared, impact of Citizens United on corporate commercial speech, and how does this relate to the film Avatar? And, fourth, what can those in unity with the justice-filled messages of the Pursuit of Justice Conference do to help the truth to prevail? We have a long way to go to promote the truth about race if we hope to become a more just society. If we do not do more, hate will continue to abound. This hate may be disguised as entertainment or commercialism, yet it is still hate which keeps us from thriving in a more civilized, and less hate-filled, society. While these hateful messages may come disguised, this writer's message does not. The clearly, undisguised message of this writer is that First Amendment jurisprudence must respond, in a meaningful way, to this societal problem and seek to hold the marketplace of ideas about race to the truth.

* * *

The marketplace of ideas is overflowing with misconceived ideas about underrepresented racial groups that drown out the truth about the equality of these groups. This sentiment was expressed implicitly and explicitly at the Pursuit of Justice Conference. The opening speaker at the plenary argued that individuals who have been harmed want their voices to ring so that they can provide information about themselves to others. Although Dr. Barbara Perry's talk was about the victims of specific hate crimes, her points hold true for those in racial groups who have been historically and continuously harmed by racial biases in America. In other words, as one workshop leader, Tony Stewart, explained, the antidote to hate is to continue to progress from the hundreds of years of slavery and other exploitations, though government sanctioned segregations and discriminations, through the level of just merely tolerance extended by the dominant groups today, to the actionable celebration of formerly suppressed voices.

To achieve this American culture of celebration of formerly suppressed voices, dominant voices must not continue in willful blindness of the effect of hate offenses and hate speech. This willful blindness unfortunately has been supported both by the Court's protection of racially hateful speech and the Court's expansion of protection for corporate voices that may perpetuate these offenses in the guise of entertainment and commercial advertisement.

When I discussed my essay with a number of scholars, some feared that my thesis would cause more harm than good, as restricting speech rights, even of corporations, could injure speech rights for individuals. I don't completely share their fears. However, I do have fears about the present perpetuation of *21 hate directed toward underrepresented groups, and how some white Americans tend to dismiss this effect.

For me, the main questions are: Is corporate speech about under-represented groups political speech or commercial speech? And if it is political speech as it does convey a message, albeit often a hateful one, what are those who seek justice and equality to do? If this speech, such as in Hillary: The Movie and Avatar, is corporate commercial speech about race, it can be freely regulated. If the speech is false and misleading, the government need only meet a mid-tier level of review. On the other hand, if it is corporate political speech, then under present jurisprudence it can be protected from content regulation even if it is false and misleading, and government may regulate its content only by meeting strict scrutiny. My position is that promoting racial equality for historically underrepresented groups meets that exacting level of review. Even if it does not meet that level, there are still options, in spite of the holding in Citizens United and other opinions where the Court does not seem to be concerned with the impact of racial hate speech on nonwhites. We are consciously and unconsciously influenced by racial messages abundant in commercial speech and film for entertainment. So, this negative influence should be important in freedom of speech legal jurisprudence. But how do we make it important? We could trust the marketplace of ideas theory that one day, somehow, truth will prevail. This option does not seem promising, given the level of hate expressed openly in America. We could try to educate the children and others more about equality and about critical thinking even when they are being entertained. We can also recognize that Citizens United gives corporations potentially too much power, and join those who seek to have it overruled or minimized. We could also seek economic avenues to motivate corporations to promote the truth about race or seek the truth about race. Some political speech is in an unprotected category; so, racial fighting words directed against underrepresented groups could be restored to unprotected categories. My other favorite is simpler--at venues like the Pursuit of Justice Conference, we can gain courage to seek to flood the marketplace of ideas with principles of equality and truth.


Professor of Law, Mississippi College School of Law.

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