September 01, 2000

Two Unlikely Heroes in the Fight for First Amendment Rights

By Robert M. O'Neil

For most lawyers these days, defending controversial clients-even extremely unpopular and socially despised clients-entails little personal or professional risk. Not so, however, for lawyers Anthony Griffin and David Baugh. Both of these accomplished African American lawyers agreed to take on, as American Civil Liberties Union (ACLU) volunteer counsel, the representation of Ku Klux Klansmen. Both cases involved central First Amendment free speech principles for which the two Klansmen in question, almost in spite of themselves, just happened to be exemplars. The issue in one case was protecting the confidentiality of membership lists of suspect organizations; in the other, it was protecting the right to choose how to protest publicly, even if that choice involves burning a cross. For their efforts, both Griffin and Baugh were subject to criticism and opprobrium by friends, colleagues, and neighbors, both African American and white. For the way they responded to such attacks, quite as much as for their initial commitment to defend free expression whenever and however it needed champions, both men deserve to be acclaimed as heroes.

Anthony Griffin
The saga of Anthony Griffin began one day in May 1993 when, as a volunteer lawyer for the ACLU of Texas, he was asked to take on the defense of a grand dragon of the Ku Klux Klan. The Klansman, Michael Lowe, had received a subpoena for the organization's membership records; the state human rights commission sought the records during an inquiry into bombing threats that impeded the integration of a Vidor, Texas, housing project. Lowe risked contempt for refusing to disclose the records and realized he needed legal help. At that point he turned to the ACLU, which recognized an important civil liberties issue in his case and assigned it to the first available volunteer, not realizing that the lawyer next in line was African American.

Anthony Griffin did not hesitate in taking on Lowe's defense, which he pursued with vigor and eloquence, eventually prevailing in the Texas Supreme Court on First Amendment grounds. Not only did he recognize at once the potential importance of membership lists to groups like the NAACP. Even more basically, he felt a special responsibility not to duck the hard or awkward cases; he insisted that such an assignment was "an honor-any time you have an opportunity to defend the Bill of Rights." Griffin added that "If I don't stand up and defend the Klan's right to free speech, my right to free speech will be gone."

When Lowe first arrived at his newly assigned lawyer's office, the issue of race had not entered his mind. He needed a lawyer and could hardly afford to hire one of his own. Moreover, the receptionist in the office at the time was white. As Lowe began to realize, just before Griffin greeted him, that his fate might be in the hands of a person of a different color, it was too late to do anything other than accept what the ACLU had offered. The presumptive dissonance between lawyer and client simply had to yield on this occasion to practical exigency, and the charting of a credible First Amendment defense began at once.

In fact, the case was a compelling one; in countless instances involving groups like the NAACP, membership lists had been legally protected to ensure the associational freedom of those who had joined a "controversial" and "suspect" civil rights organization. While the issue had not arisen in the Klan context since the 1920s, when the Supreme Court had sustained New York's right to compel disclosure of Klan membership rosters and files, it was basically the same First Amendment issue.

Regrettably, not all of Griffin's colleagues and usual allies saw the parallel so clearly. Fellow officers of the Texas NAACP (which Griffin had served for years as general counsel) sharply rebuked him for defending a Klansman and demanded his resignation. Griffin refused to back down, or to relinquish his official NAACP role. The issue bounced between the state and national NAACP offices for some weeks. Both local and national leaders declined to visit or address Griffin personally, or to elaborate their displeasure. Eventually the Texas branch simply announced that Griffin "ha[d] been relieved of his duties because of his decision to represent the Ku Klux Klan in a civil liberties case."

National groups quickly began to recognize Griffin's courage in not only taking on the defense of Michael Lowe in so volatile a case but also his singular persistence despite abundant pressure to trim sails or change course. In the fall of 1993, the Thomas Jefferson Center for the Protection of Free Expression conferred upon him its first William J. Brennan, Jr., Award, at a dinner that the Justice himself attended, along with Justice Ruth Bader Ginsburg and many other prominent Washingtonians. The award was created to recognize singular commitment to the free speech values that Justice Brennan's career had exemplified. Griffin seemed the perfect choice to inaugurate this encomium. On that occasion, Griffin not only explained why he felt so strongly about the correctness of the course he had taken, but also recounted the heavy toll that commitment had taken in both personal and professional terms. It was not only being cashiered by the NAACP that hurt deeply. Relatives, friends, and colleagues, both black and white, had far greater difficulty than he would have expected in accepting the rightness of his position. Such reactions, however, never dissuaded Griffin himself. In fact, he later took on another case, involving a Ku Klux Klan request to "adopt" a stretch of Texas highway. Most recently he has been in the news for successfully pressing in the U.S. Supreme Court a cause not likely to be any more popular in his part of Texas: the elimination of prayer at the start of high school football games. His persistence has been truly heroic, as well as being productive of some very welcome First Amendment law.

David Baugh
The case of Richmond, Virginia, lawyer David Baugh is in some ways similar, but different in at least one important respect. In the summer of 1998, Barry Elton Black, a Ku Klux Klansman, burned a cross during a Klan rally on a farm south of the James River. He was arrested for violating Virginia's statute that makes unlawful (as do those of many other states) the burning of a cross "with intent to intimidate." Black soon realized that he could not afford the cost of a substantial defense, and thus sought the aid of the Virginia Civil Liberties Union. Much as in Michael Lowe's case, the last thing Black expected was to be assigned an African American lawyer, but in Virginia as in Texas, that was precisely the result of the normal rotation among volunteer lawyers. David Baugh, a successful criminal lawyer and ACLU board member in Richmond, agreed at once to take Black's case. For him, the First Amendment issue was less immediately relevant than it had been for Anthony Griffin; civil rights groups need to keep membership lists confidential but do not regularly burn crosses or engage in any comparably hostile public activity.

Nonetheless, David Baugh sensed a comparable imperative. Beyond his belief that the Virginia law would not withstand First Amendment scrutiny, he insisted that his role enhanced the defense of free speech principles. In response to his many friends and colleagues, both African American and white, who faulted his position much as Texans had faulted Griffin's role five years earlier, Baugh explained: If a white lawyer took the case, people would observe, "Oh, that's how he really feels about things. With me, no one can think that." He added his conviction that Virginians, especially, should be aware that "the First Amendment was written to protect the right of citizens to protest, [that] protest helped overturn segregation, and the Constitution ultimately guarantees everyone's freedom. . . . You don't," he concluded, "back out of defending it."

Baugh's conviction and his eloquence have attracted national attention and acclaim in some quarters. Harvard law professor Alan Dershowitz, writing recently in Penthouse magazine, cited Baugh as an exemplar of principled defense of free expression: "The best test of whether a claimed believer in the First Amendment is a true believer is to have him or her defend a genre of speech that is completely antithetical to his or her interests or emotions." Thus, concludes Dershowitz, Baugh deserves "a place of honor in the pantheon of free speech heroes." In a National Public Radio segment last fall, weekend host Scott Simon asked rhetorically, "Why is [Baugh] defending a man who, if his views prevailed, would persecute Mr. Baugh for the color of his skin?" The answer, Simon suggested, lay in Baugh's singular and laudable commitment to principle, exemplified by his willingness to take on so hateful and controversial a cause as the defense of Barry Black.

If the two cases differ in the value to African Americans of the specific free speech claim, the outcome may also differ. Michael Lowe eventually prevailed, with Anthony Griffin's aid and counsel, when the Texas Supreme Court set aside the contempt conviction. The outcome of Barry Black's case is far less certain and will probably require months of protracted litigation in Virginia courts. The First Amendment claims, despite David Baugh's eloquence and the support of the Virginia Civil Liberties Union and other groups, did not fare well in the first round. Cross burners are never very popular, and state governments that wish to protect victimized groups from harassment and intimidation in such forms usually receive substantial deference. Virginia's high court has not spoken on these issues, though other courts have sustained cross-burning laws of a similar sort against First Amendment challenge. Yet Barry Black must realize that he has the best possible legal defense, whatever the merits or likely success of the claims to be made in his behalf.

Such heroes as Anthony Griffin and David Baugh are remarkably-and regrettably-few. Their willingness to represent avowed racists entails not only the sacrifice in time and cost that any volunteer civil rights or civil liberties lawyer expects to incur. For them, the costs are far greater in terms very difficult to calculate, and even harder for other lawyers to appreciate. It would be hard for most of us to imagine how we would react if accused of betrayal by our closest friends, colleagues, and neighbors for agreeing to defend the free speech of someone who might use that very freedom to challenge our rights and liberties. But, as both Griffin and Baugh (and many who applaud their courage) recognize, that is how our system works. It is well to recall Griffin's immediate response to the first criticism of his role: "If I don't stand up and defend the Klan's right to free speech, my right to free speech will be gone."

Robert M. O'Neil is director of the Thomas Jefferson Center for the Protection of Free Expression and professor of law at the University of Virginia, where he teaches several courses on First Amendment issues.

As published in Human Rights, Fall 2000, Vol. 27, No. 4, p.14-15.