Note: This is a unedited rush transcript. Please check any quotations against the audio recording.
Interviewer: So, David Baugh, thank you for coming on the show.
David Baugh: Thank for having me.
Interviewer: So, as you know our show is on the topic of defending my enemy. I know you’re likely to take umbrage with the specific wording of the topic choice. You would prefer it to be defending the rights of my enemy, but carrying on in the tradition of former ACLU executive director, are you near? You’re known for your principle defense of the constitutional rights of those with whom you disagree and perhaps the most prominent example of this was your legal defense as a black criminal defense attorney of an imperial wizard of the Ku Klux Klan. Who was Barry Elton Black and how did you and this unlikely character come together?
David Baugh: Well, back in those years I was on the Board of Directors of the ACLU of Virginia. I was also on the legal advisory panel, which was a group of people, mostly lawyers, and whenever citizens would write in and ask for ACLU support we’d get presented these situations and we’d weigh in. We would decide whether to weigh in and they’d flash them around our offices, well Mr. Black had been arrested over in the western part of the state. He and a group on Klansmen. He was from Pennsylvania and had rented a piece of farmland and they came down to protest and as part of that protest they had a weenie roast or whatever it is on this property with the permission of the owner and at the end of it they lit this cross up, stood around in their regalia, and it could be seen for miles.
Well, a local deputy saw it and recognized that there was a Virginia statute saying you can’t burn a cross like that with the intent to intimidate. And there’s a presumption that when there is a cross burning, there’s an intent to intimidate and he arrested him. Well, after he was arrested, Mr. Black, he couldn’t find an attorney over there so he wrote into 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.
So, he couldn’t find an attorney and it’s important that the first amendment be preserved. So, as a criminal lawyer, I said I’ll take the case. Little did I know, it was gonna be so big.
Interviewer: And what did you fellow ACLU attorneys, people on the board, think when you chimed in and said you’d take the case?
David Baugh: They were nothing but respect and assistance. I remember the Director of the Legal Advisory Panel pulled me in the room along with the Executive Director and said – Ken Willis, and said look it’s admirable you’re gonna volunteer to represent this guy. If he’ll accept our help, we’ll do it. If he doesn’t, well we offered. It’s up to you. I said sure.
So, he and I – Mr. Black and I played telephone tag for a while. Finally, we made contact and I explained to him that I was offering my services from the ACLU and I explained to him that I’m African-American and that if that made a statement he didn’t want to make, I could understand stand if he would refuse my representation. To which he responded that he had done some research on me and thought I could do as fine job as any white man, so he asked for my help.
Interviewer: What was the specific law that he was prosecuted under? Because I understand that Virginia had a sort of different kind of intimidation law that didn’t take into consideration intent.
David Baugh: Well, it did take it into consideration, but it was sort of presumed. They said you have to have the intent, however just burning the cross seems to satisfy the intent. There was also – there was a statute right after it for the same thing about burning a star David.
Interviewer: Oh, wow. And what was your biggest challenge in putting together that defense? Had you done anything like that before?
David Baugh: No, I didn’t even know the statute existed. When it came across my desk, I looked at it and I went what the hell is this? And I went to the library and pulled this statute and I thought there’s no way this could pass constitution muster. So, I mean it was a no brainer.
Interviewer: Uh-huh, but you lost at the trial court level?
David Baugh: Well, the problem we had with the tactics of the case is that normally criminal defenses fit into three categories. It didn’t happen, it did happen and there’s an explanation, or this is a bad law. Very seldomly do you assert the last one. So, from the day we took the case, Mr. Black had burned a cross and the statute says you can’t burn a cross. So, as far as factually he did that which the statute forbids. So, I told him from day one and we talked about it on the Legal Advisory Panel the trick to the trial was, 1.) Try as best I can to keep him out of jail of a five-year statute. 2.) Assume that he will be convicted. Try to get him not guilty but assume he is and build a record challenging the constitution of the statute as an attempt to suppress content.
Interviewer: And that’s what you did, right?
David Baugh: Yes, a brilliant lawyer by the name of Rod Smolla, S – M – O – L – L – A, was Dean of the University of Richmond Law School was the appellate guy from the panel and he and I talked and we talked about what kind of record he wanted, what kind of transcript he wanted. We challenged the statute at the preliminary hearing, lost. We challenged the statute pretrial, lost. He was convicted. The jury gave him only a fine. We kept him out of jail. We gave notice of appeal to the Virginia Court of Appeals, which we won and got the statute thrown out.
However, the government because it’s a constitutional challenge, the government has the right to appeal. So, the government appealed it to the Virginia Supreme Court, where we won as well and then the government – the Commonwealth of Virginia advocated or filed a motion for a hearing with the United States Supreme Court.
Interviewer: Were you surprised when the Supreme Court accepted the case?
David Baugh: Not really. Without blowing my horn, Rod Smolla’s a real smart guy and he really laid it out in such a way that it was just – for instance, the bad part about the statute is the presumption language and we didn’t even try to get that language wacked out when we argued it to the jury. We wanted that language in because we felt that language was the language that would get the statute declared unconstitutional.
Interviewer: Yeah, and where were you when the ruling came down? Where you in the courtroom?
David Baugh: When the ruling – no, I wasn’t. I was there –
Interviewer: For the argument?
David Baugh: I was there for the argument, but by serendipity I was in DC trying another case a couple years later and I received word that the supreme court was gonna hear that case that day, so I excused myself from the trial and went down and got the last available seat and sat there for the first time in my life and went in before the Supreme Court of the United States.
Interviewer: Yeah, was this case tough for you at all to take?
David Baugh: No, it wasn’t. It was a number of reasons. 1.) I was growing up; my mother taught me that a principle or a moral isn’t really yours until it’s tested. 2.) I do know from my philosophical understanding of the United States constitution that for every right or benefit that we get, there’s a corresponding responsibility. By that I mean, if you want the right to speak freely that means you have to listen to a lot of stupid crap.
In fact, if you want the right to speak freely, you have to even protect the right of others to say stupid crap. And also, the first amendment normally isn’t challenged accept by the extremes. By that I mean, there’s never gonna be a civil rights case about [inaudible] [00:09:15] or SpongeBob Square Pants. It’s always going to be a Malcom X, a Klansman, some group or identity or person who is do this – part of radical fringe and that is where these cases pop up, that is where the defense pops up.
Interviewer: This wasn’t really a new sort of case or idea for you, the idea of you defending controversial speech. You’d done it before in your career, right?
David Baugh: Yes, I have. Well, speech and defendants. I was lead counsel and won the defendants member of Al Qaeda on the US bombing in Nairobi, Kenya. I have represented for the ACLU a number of pornography cases, dirty book store cases, students arrested for showing controversial movies on campus, so no. It’s not my typical case in that I am a criminal trial lawyer. I represent people who are charged with drug dealing, murder, stuff like that. This is primarily constitutional. So, in that way it was different and the same.
Interviewer: Yeah, talk a little bit about your road to the legal profession. You mentioned you had defended students who wanted to show movies on campus. You were quite the student activist yourself, correct?
David Baugh: Well, I certainly wasn’t planning to become a lawyer. In fact, I was very hesitant when I decided to go to law school because I gonna hear it from my mother the rest of my life say I told you should’ve been a lawyer. Oh god, but in the 60’s I went to a historically black school and the Commonwealth of Virginia decided to break up some of the black schools and farm out various departments to white campuses so they could meet their integration guidelines. And I was one of the students who attempted to stop it and we did and I was expelled. Suspended my senior year – my second semester of my senior year and sat out for a couple of years, but –
Interviewer: The ACLU stepped in to help you out, right?
David Baugh: That was my first interaction with the ACLU. Well, I had been – When I was 16, I was arrested during the Nashville sit ins and the local ACLU stepped in and represented us, so I had seen them, but I didn’t know anything about lawyers. But, while sitting in federal court watching the ACLU – Arthur Samuels was the lawyer, really great guy. He was trying to get the students back in while sitting there. I was, at that time, I hadn’t graduated yet because I was suspended and I was applying to graduate school in drama and while sitting in the courtroom watching the ACLU I thought, this is important and I can do this. I ought to try and do this. So, I decided to become a lawyer while sitting in my trial.
Interviewer: Yeah, and what brought you to criminal defense law?
David Baugh: Well, like most lawyers, you don’t really pick your area. It picks you and when I was in law school my first year I was hired by a local attorney in Houston. I went to a historically black law school and I was doing – he was a general practitioner. He did personal injury, divorce, everything and I was doing a little bit of everything. Well, I seemed to have a talent for criminal and so he used to pay me to sit in court and watch.
So, I would work on cases, I would write briefs, I would go to court, I would watch, help pick juries, and so I just started doing it. In fact, I was telling someone at coffee today, when I passed the bar I went in to see Jesse Fuentes, the senior partner, and I said Jesse congratulations you passed the bar. I said, “Yeah but it was a Thursday so I gotta get off next Wednesday because I have to go to Austin, Texas to get sworn in.” He says, “You can’t go.” I said, “What do you mean I can’t go get sworn in?” He said, “You can’t go Wednesday because Monday morning Judge Pavey,” P – A – V – E – Y, I remember it so well, “Is meeting you in his chambers at 8:00 a.m. and he’s swearing you in and at 10:00 you’re picking a jury in State of Texas versus Sterock, a case you’ve been working on. So, I literally tried my first felony jury trial when I had been a lawyer for two hours.
Interviewer: What was that case about?
David Baugh: It was a aggravated assault case. He had gone to a store and they said he had shop lifted a Playboy magazine and while leaving they said they challenged him and that he put his right hand in right pocket and pulled out a knife and threatened them and escaped with his Playboy and he was arrested for assault with a knife. And we won the case because Mr. Sterock was a Vietnam Veteran who had been injured in the war and one of his injuries was he could not open the fingers on his right hand. He couldn’t put his right hand in his pocket.
Interviewer: Wow, have you ever done any – litigated any constitutional issues per say at the appellate level or have you been strictly criminal?
David Baugh: Well, actually all criminal law is constitutional, in fact I was talking to a legislator at lunch today – the one that was – and there’s an ancient Buddhist expression that I made up one night when I was drinking that is that there’s only one law and that’s the constitution. All statutes are merely the ravings of politicians. So, in my efforts to defend people charged with crimes, I’ve won motions to suppress. I’ve wont motions to dismiss. I’ve had cases where statutes had been declared unconstitutional.
I remember once – Richmond used to have a city ordinance that they used for busting gays in the park that said it shall be unlawful to solicit another to engage in any act which is lewd, lascivious, or wanton and I said, “Judge, this statute is unconstitutionally broad. These terms could be anything.” And he said, “I wanna see your brief.” And I said, “Good, because I’d like to leave.” “Why?” “Because I wanna go home because before I left this morning, my wife Jocelyn gave me a kiss that was lewd, lascivious, and wanton and I want to go home.”
He struck the statute. So, yes, I have challenged statutes before, either as written or as interpreted, yes. But that’s just in part in parcel of criminal practice.
Interviewer: Yeah, speaking of judges, you said some judges had some interesting things to say to you after you took the Barry Black case. What were some of those things?
David Baugh: Oh, god I’m so proud. There were some people who criticized, but there weren’t that many. But, among –
Interviewer: Where do you think the – where did the criticism mostly come from? Did you get any push back from like the NAACP?
David Baugh: Yeah, there was pushback form the NAACP of Virginia, but also at that time however I remember that Julian Bond wrote a great letter to the paper in support of my position and my obligation to take this case. So, that’s pretty heavy stuff, you know? Julian Bond. So, yeah and sometimes I would go into a court and you’re waiting for your case to get called and judges would say, “Mr. Baugh, I see you at the bench.” And you come up and he’d stop a trial and tell me how proud he was or she was that I took this case because you see whenever a lawyer takes a criminal case, people assume that you are condoning your client’s behavior.
If your client is charged with child abuse, they thing even when the trial’s over you put on a raincoat and you go to the playground. But, that’s not true. We’re protecting the law. So, when Mr. Black was arrested for this, I could understand how a white – if I were a white lawyer in the western part of the state, I wouldn’t have taken that case because people will say well you know how David feels about the Klan now because he’s representing that sheet wearing guy from Pittsburgh. But, that wasn’t gonna be true with me. No one’s gonna assume that I’m a closet Klansmen or I have robe in the basement. By my representation we were able to show to th world this I a first amendment issue. It’s not a Klan issue. It’s not a cross burning issue. It is a first – I’m sorry, I apologize by the way. I cross burning.
If you ever meet someone and you wanna know if he’s a Klansman or not, say cross burning because a Klansman will say no no no. Burning is destruction, it’s a cross illumination.
Interviewer: Oh, wow. I didn’t know that.
David Baugh: Yes, I remember that. My client explained to me that there was not intent to destroy. It’s an intent to illuminate. So, if you say cross burning and someone says illumination, trust me there’s a robe in the basement.
Interviewer: Wow, did you ever find some of the attention that this case got problematic? Because I read somewhere that you had thought about dropping the case at a certain point because you thought it was just getting too much attention. This black white thing, but then you said that upon further reflection you realized it was helpful because any white attorney came and ended these guys as you said, would be seen as a Klan sympathizer.
David Baugh: yeah, they would see it – the public would see that lawyer as protecting the Klan, rather than protecting the first amendment and I think that was important for the public. We have a tendency – we as citizens, have a tendency not to understand or respect our constitution. It’s wasted. In fact, something I used to say also when when I was drinking too much, Americans do not have a sense of justice but they have a sense of injustice. And so, when you take a case and you remove the Klan emotion stuff and you put an African-American lawyer in there, then we go back to the issue of should anybody be allowed to say hateful things? And I’m not the first African-American lawyer to represent a member of the Klan and I’m also – my co-counsel on the Al Qaeda case in New York was Jewish. The skokee lawyers were Jewish.
Interviewer: And we just interviewed Glenn Greenwald who –
David Baugh: I’m in awe.
Interviewer: Yeah, well he’s appearing on the same episode with you and he spent the early part of his legal career defending neo-Nazis, a guy by the Matthew Hale despite the fact that Glenn has a Jewish background and is also gay.
David Baugh: In his defense, I must that say Glenn did not defend the neo-Nazi, he defended the American principle that says that in a true free society every idea has to be discussed if for no other reason than for saying that’s a stupid damn idea, we have to throw it away. But, we need to discuss every idea, even neo-Nazis because while we have a right to speak freely, that doesn’t mean we have a right not to be comfortable by the speech of others.
Good speech – people say things that make us uncomfortable. I say things that make people uncomfortable. Anything about the Washington Redskins. And that is my right and as long as I’m not resorting to – as long as there’s not a threat of imminent bodily injury or death, we have to encourage those sorts of ideas to be discussed. Part of being an American is the obligation to listen to language that makes you uncomfortable. If you’re going to be a citizen, if you’re going to speak freely, you have to be able to tolerate bad ideas.
In Brandenvurg versus Ohio, which was an earlier cross burning case where Elinor Homes Norton, excellent African-American lawyer from DC now the representative, defended the Klan in Brandenvurg versus Ohio and in that one the Klansmen were sanctioned and arrested for saying that blood will flow in the streets, and all this, and all this, and all this. And I mean it was really vicious and the Supreme Court came down in Brandenvurg versus Ohio and said look they can say it until the cows come home, but until somebody starts crossing the line and applying these – bringing these threats to fruition or getting them close to it, it has to be protected.
So, and there’s a lawyer name Griffith out of Galveston during the 60’s whom I’ve never met but I’ve read some of his stuff, he – in the 60’s the State of Texas issued subpoenas to the Klan for their membership lists and the Klan tried to find a lawyer and they couldn’t find one, so they went to the ACLU and this lawyer, Mr. Griffith, was the attorney who represented them – African-American from Galveston and ironically he won the case by using another case where in the early 60’s the State of Georgia had demanded the NAACP turn over their membership list and suing that NAACP defense case, he protected and prevailed on the Klan membership. So, see the principle applies to whatever side of the spectrum you’re on and that’s a classic example, the Galveston Klan case.
Interviewer: That guy sounds sort of like a free speech hero to you. Do you have any – as we finish up here, do you have any other free speech heroes?
David Baugh: Well, I have many of them. I have many of them you would never know.
Interviewer: And those are the people that I like to know about.
David Baugh: Well, I remember one thing – two things that struck me that really made my hat too small, they swelled my head. 1.) My father was a war hero. My father was a Tuskegee Airman fighter pilot and they were doing a photoshoot at a local school and –
Interviewer: For any of our listeners here who might not be familiar with Tuskegee Airman, can you just give a quick primer on them?
David Baugh: The Tuskegee Airman was an experiment in World War II where due to FDR down to Roosevelt, they decided to take African-Americans and make a black fighter squadron and the official position of the department of the war at that time was that black people where too ignorant and cowardly to engage in combat and for that reason most blacks were not allowed in the infantry. They were not allowed in any unit that had combat. They were also presumed to be too ignorant to know the complexities of military machines. Well, FDR under pressure from the black press established a black training unit and a black squadron. So, the 99th squadron where a group of African-American men who went to training in Tuskegee.
They succeeded. They became combat pilots. They went to World War II. They had an enviable record. When it comes to – for many years it was thought they never lost a bomber to enemy aircraft fire because they were so dedicated and they stayed so close to it. And I’ve met some of them and they had some wonderful stories and he was – in fact, of the 20 men in his class, my father’s class, four became pilots. The washout – the rigors were unbelievable, so he was sent over to Europe. At that time, you had to fly 50 combat missions before you could be rotated in the fighter pilot, 25 for the bomber pilot.
Well, because the experiment on the Tuskegee airman was expected to fail, there weren’t enough men in the pipeline, so my father’s – he flew 135 mission because they just weren’t there and they had – and then after he rotated the back, the 99th squadron was so successful it was later expanded to the 99th, 100th, 301st, 302nd, and it became the 332nd fighter wing which is larger and it fought through to the end of the war. But, interestingly they were over there and they were fighting however, when they got on the ships to come home a couple of them talked about when the shipped docked at Fort Dix in New Jersey – when they got off the ship – they’re war heroes and they go on the [inaudible] [00:26:58] and there’s a sign that says colored troops to the right, white troops to the left.
David Baugh: So, anyway he was – and so they were talking to him and they said well Colonel Baugh, did you ever think when you were over in a war getting shot at that you’d be recognized as a protector of freedom in a segregated country? My father said, no I just shot at people who shot at me. My son, the lawyer, does more to protect freedom in a day than I did in my career.
Interviewer: Wow, that’s quite the endorsement.
David Baugh: And then another time I was pumping gas on a cold night in Richmond, Virginia and I was pumping gas. This young man came by and he was in a chef coat and he had his girlfriend and I’m sitting there pumping gas and he said, “You that lawyer defending the Klansman.” And I said, “Yeah, I’m not gonna get into a constitutional discussion.” I said, “[inaudible] [00:27:54].” And so he told me that he admired me and his girlfriend or wife said, “Why would you do that?” And this gentleman said, “No, you don’t understand what Mr. Baugh does. This case is just like his car; it’s just another ride to work. That’s what he does. That’s what he supposed to do.”
And I’ll also say this, that usually it’s those scary things that are the right thing to do. Although, this was not scary. It was interesting. It was interesting that I knew that my client – he and I were never gonna be friends and I didn’t want to be his friend. I just want to save him and one of the reasons we turned out – we were getting calls from television shows. They want us to appear on stage together and I turned them all down for two responses. 1.) Whenever your lawyer puts on the news, it’s for the benefit of the lawyer not the client. And 2.) I told them that you want us to get together under the chance that maybe he’ll have some epiphany and think I’m wrong and we’re gonna have some great kumbaya moment and take a warm shower and it’s gonna be a Miss Daisy thing.
And that’s not what this case is about. It’s not about us liking each other. It’s not about my sharing his views or turning him over. He has – not only does he have a right to say these things. He has a right to be a bigot and it’s my job to protect his right to be a bigot. So, no we’re not – I mean we were getting – my answering service was so impressive. They were calling me and telling me who was calling. Oh, I remember I have a place up in the in the country where I go up and hide out and the London Times called and they wanted to send a reporter to interview me. And I said, well that’s nice guys but I’m not being here. I’m going up to the country and hide out and they asked for the address and they sent a reporter to just outside Charlottesville to my cabin and she got lost and she showed up at the cabin.
I ended up making her lunch and she interviewed me for one of the London papers. So, I remember having a conversation with an Irish lawyer. I remember talking about how the Irish never had anything in the cuisine that I would want to eat and we had a nice discussion about fried Mars bars. It was a – I had no idea that it was going to jump into the media the way it did.
Interviewer: Yeah, well David, I think that’s all the time that we have left.
David Baugh: I’m sorry to be so windy.
Interviewer: No, that’s what we love. We love the stories behind these cases and it sounds like you’ve got some incredible ones and hopefully we’ll be able to bring you back at some point to discuss some of those other first amendment cases or free speech cases.
David Baugh: Everybody has incredible stories. You just have to – every day you have an opportunity to be a hero. Everybody does. Question is how do you take it?
Interviewer: Well, we’ll do our best over here at fire, David and you continue to do the great work that you’re doing and thank you so much for coming on the show.
David Baugh: Thank you, it was very hospitable. Thank you.
Interviewer: Thank you.
David Baugh: Good day.
Interviewer: Good Day to you.