On this Martin Luther King Day, it is important to remember that the First Amendment was one of the foundation stones of Dr. King’s work. But Dr. King’s life includes a darker lesson about how the First Amendment was abused in an attempt to silence him—a lesson that is relevant on today’s college campuses.
As Dr. King describes, he and his colleagues organized a peaceful protest over the 1963 Easter weekend in Birmingham, Alabama. They applied for and were denied a parade permit from the city. They nevertheless announced that they would continue with the march because they believed the denial of the permit was unconstitutional. The city of Birmingham then sought, and received, an injunction against the protest, which was held as scheduled. Dr. King and his colleagues were subsequently convicted for contempt, which they appealed up to the U.S. Supreme Court. The Court upheld the conviction on a 5–4 vote in Walker v. City of Birmingham. Although the Court stated that parade ordinance would “unquestionably raise substantial constitutional issues,” 388 U.S. 307, 316 (1967), it held that because Dr. King did not challenge the injunction, he was bound by it.
Dr. King issued a four-page statement after the decision as he prepared to serve his jail sentence for contempt. It states in part:
Today we return to a Birmingham jail once again to bear witness, this time against a weapon which has the potential of doing greater harm to America than Bull Connor’s dogs and fire hoses. The weapon is the “X-party injunction” used by hostile local courts to frustrate and silence the vital First Amendment rights of all citizens to assemble and petition when they wish to protest or dissent. Justice Brennan, one of the four dissenting judges, warned the majority on the Supreme Court “let loose a devastatingly destructive weapon for suppression of cherished freedoms heretofore believed indispensable to maintenance of our free society.”
The statement also quotes Justice Douglas’ point in dissent that “a person must pursue his judicial remedy before he may speak, parade, or assemble, the occasion when protest is desired or needed will have become history, and any later speech, parade, or assembly will be futile or pointless.” Very true, as my colleague Samantha Harris recently explained on Fox & Friends.
Yet today, one in six U.S. colleges create artificial barriers to free speech on campus by establishing “free speech zones,” tiny areas of campus where students must go to express their views. And there are sign-up procedures even for this limited space, further restricting access. Another form of prior restraint includes requiring advance notice of demonstrations—often five days, but sometimes as much as two weeks (PDF). These limitations are blatantly unconstitutional, as the University of Cincinnati discovered when a student group sued the school and a federal court struck down its restrictions. And yet these unconstitutional policies persist because not enough people cry foul. Or, as Dr. King put it, the “greatest tragedy” is “not the strident clamor of the bad people, but the appalling silence of the good people.”
Universities, and sadly some students, defend these procedures because of the need for order on campus—a justification that the Supreme Court has roundly rejected. Worse, some students don’t want to be confronted with ideas they find annoying, ill-formed, or offensive. But they should remember that when Dr. King said that segregation was wrong, many people found his views abhorrent—so much so that they turned fire hoses and dogs on him and on other peaceful protesters to shut them up.
If you are currently a student on a campus with restrictive speech policies (and there is a 94% chance that you are), honor Dr. King’s legacy by challenging them. There are many avenues open to you to promote free expression on your campus, from working to achieve policy reform, as the students did at The College of William & Mary and James Madison University, to suing your school, as Robert Van Tuinen did when Modesto Junior College stopped him from distributing the Constitution on campus. Contact us; we’re here to help.