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‘So to Speak’ Podcast: David Baugh on ‘Defending My Enemy’

Why would a black criminal defense attorney—who fought against segregation in high school and battled racism in the courtroom—volunteer to defend the First Amendment rights of an Imperial Wizard of the Ku Klux Klan?

“It is important that the First Amendment be preserved,” said Richmond, Virginia-based attorney David Baugh during an interview for the latest episode of FIRE’s So to Speak: The Free Speech Podcast. “So as a criminal lawyer, I said, ‘I’ll take the case.’ Little did I know it was going to be so big.”

That “big” case went on to become the landmark Supreme Court decision in Virginia v. Black (2003).

In 1998, Imperial Wizard of the Ku Klux Klan Barry Elton Black participated in a cross burning at a Klan rally in rural Virginia and was prosecuted under a state statute prohibiting cross burning with intent to intimidate. With Baugh’s help, Black challenged the Virginia statute as a violation of the First Amendment. In 2003, the Supreme Court held the statute unconstitutional because it treated the act of cross burning as prima facie evidence of intent to intimidate rather than requiring the government to prove that element of the crime.

“[B]ack in those years, I was on the Board of Directors of the ACLU of Virginia,” Baugh said, explaining how he came to learn about Black’s prosecution. “After he was arrested, Mr. Black couldn’t find an attorney … so he wrote in to the ACLU and asked for some help. When I read it, I knew immediately—you cannot suppress or you can’t just cut out one form of language. I mean Mr. Black certainly had a right to stand in a field and shout ‘I hate black people.’ He certainly had a right to hold up a sign. Well, under the law, he had the right to symbolically do the same thing.”

This is the second episode of FIRE’s So to Speak podcast’s series on “defending my enemy.” Two weeks ago, we talked with journalist Glenn Greenwald about why people who vehemently oppose certain ideas nonetheless staunchly defend the right of others to express them. As a young lawyer, Greenwald defended the First Amendment rights of neo-Nazis for many of the same reasons David Baugh said he defended the First Amendment rights of Barry Black.

Baugh certainly believed Black’s ideas were repugnant when he took the case. But he also believed strongly in the First Amendment and that the freedoms enshrined in that amendment needed to be protected.

“As I was growing up,” Baugh said, “my mother taught me that a principle or a moral isn’t really yours until it’s tested.”

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