The Advocates: Fred Gray and the First Amendment

Today, Your Witness forum begins a new series entitled “The Advocates.” Along with essays on legal issues in the Your Witness forum, “The Advocates” will highlight the contributions of particular lawyers who have advanced the cause of the rule of law and liberty under the Constitution. Our first contribution is by Jonathan L. Entin, David L. Brennan Professor Emeritus of Law, Case Western Reserve University

Professor Entin, your witness…

The civil rights movement generated numerous important Supreme Court decisions that expanded First Amendment protections. Among the lawyers whose work led to those rulings is Fred D. Gray, one of the most important civil rights lawyers in American history.  Gray, who originally aimed for the ministry, is still practicing law at the age of 90. In his legal career, he represented Rosa Parks, Martin Luther King, Jr., and the victims of the infamous Tuskegee syphilis experiment, among many others during a career that is now in its seventh decade. He played key roles in several landmark First Amendment cases.

One of the most famous of these was New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which provided powerful constitutional protection for critics of government officials. The case arose from a full-page advertisement criticizing the actions of the Montgomery, Alabama, police during civil rights protests.  The advertisement had appeared shortly after Alabama had unsuccessfully prosecuted Dr. King for perjury.  Police Commissioner L.B. Sullivan brought suit against the New York Times asserting that content of the advertisement was libelous. Gray represented four Alabama ministers whose names appeared in the advertisement and whom Sullivan had named as defendants in an attempt to keep the case out of federal court. This meant that there was no diversity of citizenship so the case would have to be heard in state court. Under Alabama’s common-law libel doctrine, an all-white jury returned a verdict of $500,000 for which both the newspaper and the ministers would be liable.

The Supreme Court ultimately overturned that judgment, holding that “the central meaning of the First Amendment” embodied “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” Only deliberate falsehoods or statements made with reckless disregard for the truth would allow a public official to recover damages for defamation. The Court might not have taken the case at all if Mr. Gray had not helped to make a formidable record at trial showing that Sullivan’s defamation claim was part of a systematic effort to maintain segregation and punish those who dared to challenge white supremacy. Throughout the trial, Gray emphasized that the ministers’ names had been used without their knowledge or consent, that they had nothing to do with the advertisement’s publication, and that they had no prior knowledge that the advertisement was to be published.

The story does not have a completely happy ending, though. The ministers could not afford to post bond, so Sullivan immediately seized their cars and other property to satisfy as much of the judgment as he could while the case was on appeal. After the Supreme Court reversed the judgment nearly four years later, Sullivan was forced to turn over to the ministers the money he had obtained from the sale of their seized cars and property. But they never had their property returned to them.

Earlier, in NAACP v. Alabama, 357 U.S. 449 (1958), Fred Gray advanced the cause of freedom of association as he would for freedom of speech in New York Times v. Sullivan.  The case rebuffed the state’s efforts to put the nation’s oldest civil rights organization out of business, although the Supreme Court had to issue four separate rulings before the state abandoned its quixotic campaign.  Gray served as local counsel for eight years throughout this dispute.

Segregationist state officials had concluded that the NAACP was fomenting civil rights efforts, helping African American students gain admission to whites-only public universities, supporting the Montgomery bus boycott, and otherwise trying to undermine segregation in violation of state law and custom. If the NAACP could be shut down, state officials hoped that what they viewed as outside agitation would cease and Alabama’s otherwise supposedly contented Negroes would return to life as usual.

The state’s attorney general obtained a court order requiring the NAACP to turn over voluminous records, including its membership list. When the organization refused to surrender the membership records, the judge held the NAACP in contempt and imposed a fine of $100,000, but the Supreme Court unanimously ruled that the order to disclose the membership list violated the First Amendment. In NAACP v. Alabama, the Court reasoned that mandatory disclosure might well deter individuals from joining or remaining in the NAACP for fear of physical or economic reprisals.

This ruling established important First Amendment principles relating to freedom of association and laid the foundation for a series of later decisions that struck down other efforts to harass or outlaw the NAACP. But Alabama litigated for six more years. Finally, on June 1, 1964, fully eight years after the state first went into court, the Supreme Court emphatically rejected all the arguments for ousting the NAACP from Alabama. To prevent further duplicity by the state, the Supreme Court directed the Alabama authorities to permit the NAACP to qualify to do business there and to stop harassing the organization. This time the Alabama Supreme Court finally got the message and issued the order that it should have handed down the first time around.

Finally, we should note Fred Gray’s involvement in the events in Selma that contributed significantly to the passage of the Voting Rights Act of 1965. After the brutal suppression of the original march on March 7, 1965, known as Bloody Sunday, Dr. King and other civil rights advocates resolved to resume the march. The very next day, Fred Gray filed a lawsuit in federal court seeking an order directing Governor George Wallace and other Alabama officials to allow the march to resume and to protect participants. Judge Frank Johnson asked the lawyers to draw up a detailed plan for the march. The plan was prepared in Gray’s office; the judge quickly approved it and ordered the state to provide police protection for the demonstrators. The march did take place, and the Voting Rights Act was approved later in the summer.

Without robust First Amendment protection, the civil rights movement would have faced even more daunting obstacles than it confronted. Fred Gray understood that, so he enthusiastically threw himself into these and other cases that have had lasting impact on American law and life.