First Amendment freedoms developed during the Civil Rights Movement

Last updated Sept. 29, 2024

First Amendment freedoms developed significantly during the Civil Rights Movement of the 1950s and ‘60s. As southern states and segregationists used their laws and courts to stifle political opponents, proponents of equal rights worked to secure many of the civil liberties we hold dear today. 

Many of the most enduring images from the Civil Rights Movement show protesters holding massive demonstrations and participating in civil disobedience in pursuit of equal rights, as well as the sometimes brutal methods that local and state governments employed to try to stop them. Protesters faced fire hoses, police batons, and violence from onlookers. Many civil rights leaders had their homes bombed, some were assassinated, and others were arrested on trumped-up charges.

But civil rights leaders also spent much of their time defending their legal rights in court. In what would become his final speech in Memphis, Tennessee, on April 3, 1968, the Rev. Dr. Martin Luther King Jr. spoke with soaring rhetoric about not only the Biblical nature of African-Americans’ struggle, but also the intricacies of the American legal system, which he and many others worked tirelessly to reform to ensure equal treatment under the law. 

“Now about injunctions,” King said to the congregation at the Church of God in Christ in Memphis about the court order prohibiting their protest. “We have an injunction and we’re going into court tomorrow morning to fight this illegal, unconstitutional injunction.”

Many times during the Civil Rights Movement, Southern officials sought help from courts to prohibit civil rights activists from engaging in marches and protests. King was no stranger to these restrictions, known as injunctions. In Birmingham, Alabama, officials got an injunction prohibiting him from marching on Good Friday in 1963 — which he did anyway. King and others were arrested that day, prompting him to write the famous “Letter from Birmingham Jail.”

When King visited Memphis in 1968, city officials there also sought an injunction to prohibit him from marching in “the Home of the Blues.” King ultimately prevailed over the injunction in what would be his last legal battle before being felled by an assassin’s bullet. He told the crowd that they must keep marching despite government opposition: 

Now we’re going to march again, and we’ve got to march again, in order to put the issue where it is supposed to be. And force everybody to see that there are thirteen hundred of God’s children here suffering, sometimes going hungry, going through dark and dreary nights wondering how this thing is going to come out. That’s the issue. And we’ve got to say to the nation: we know it’s coming out. For when people get caught up with that which is right and they are willing to sacrifice for it, there is no stopping point short of victory.

Whether it was Martin Luther King Jr. fighting a Memphis injunction or The New York Times fighting a defamation lawsuit brought by the police commissioner in Montgomery, Alabama, court battles were central to guaranteeing First Amendment freedoms. Through their efforts, civil rights activists and their allies persuaded courts to codify some of our most important First Amendment freedoms:

• Protection of the right to peacefully protest under freedom of assembly and other First Amendment rights. 
• Limitation of state libel laws by the First Amendment. 
• Explicit recognition of freedom of association as a Constitutional right. 
• Narrowing of unduly broad restrictions on getting a license for protests. 
• Protection over the ability to engage in public interest litigation. 

Without the Civil Rights Movement, these rights might look much different in America today.

Securing freedom of assembly on public property 

A key facet of the Civil Rights Movement was individuals assembling to advocate for causes and protest unfair laws. The Supreme Court decision that most clearly protects these expressive activities is Edwards v. South Carolina (1963). 

In Columbia, South Carolina, 187 African-American students marched from Zion Baptist Church to the South Carolina State House grounds, carrying signs with messages such as “Down with Segregation” and chanting religious hymns. They were peaceful throughout the 45-minute march. When they reached the statehouse, a group of several hundred individuals appeared across the street. Many of these individuals opposed the students’ message, some quite loudly.Instead of working to ensure the student marchers could still have their say, the police ordered them to disperse. When they did not, police arrested and charged them with breach of the peace.

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A local magistrate issued fines of $10-$100 and jail terms of 10-30 days. Unsurprisingly given the era, the students’ appeals through the South Carolina state court system didn’t bring them justice. So the students took their case all the way to the United States Supreme Court, which reversed their convictions, finding that the “circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form.” 

The high court wrote that states cannot criminalize “the peaceful expression of unpopular views.” 

This decision has protected protesters ever since, and it continues to be cited in protest cases concerning issues from Black Lives Matter to COVID-19. 

Libel laws cannot overrule the First Amendment 

The Supreme Court’s decision in New York Times Co. v. Sullivan (1964) is one of the most celebrated freedom of expression cases in modern history. It didn’t just subject state defamation laws to the First Amendment — it probably saved the Civil Rights Movement. 

The case arose when The New York Times published an editorial advertisement entitled “Heed Their Rising Voices.” The advertisement, submitted by the Committee to Defend Dr. Martin Luther King Jr., spoke about civil rights abuses in Montgomery, Alabama, by “southern violators” and the harsh treatment of King and his followers. One passage in the advertisement declares: 

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and teargas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.

There were some factual errors in the advertisement. Nine students were expelled for demanding service at a lunch counter in the Montgomery County Courthouse, not for singing “My Country, Tis of Thee” on the state capitol steps. The police never padlocked the campus dining hall, nor did they “ring” the college campus. The ad also stated that the police arrested King seven times, while the actual number was four. 

After learning of the ad, L.B. Sullivan, the Montgomery police commissioner, sued The New York Times and four Alabama clergymen for defamation in Alabama state court. Even though Sullivan was not mentioned by name and the actual facts were only marginally less bad than the advertisement claimed, he claimed that they sullied his reputation as a fair enforcer of laws.

An all-white jury awarded Sullivan $500,000 — the equivalent of more than $5 million in 2024. The New York Times unsuccessfully appealed through the Alabama court system, then appealed to the Supreme Court. Sullivan’s lawyers emphasized that traditionally, states are free to develop local defamation laws as they see fit. However, the newspaper argued that the state’s application of its defamation laws — particularly relating to speech on matters of immense political and public importance — could violate the First Amendment. 

During the Civil Rights Movement, Southern officials frequently denied marchers or protesters permits to march or protest on public streets, usually hiding behind a litany of excuses. 

The Court agreed, finding that “libel can claim no talismanic immunity from constitutional limitations,” but must “be measured by standards that satisfy the First Amendment.” The Court emphasized that it considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Ultimately, the Court decided that, in order to allow for free speech, public officials like Sullivan would need to meet a higher standard to win defamation lawsuits. They would need to show not only that a defendant published false, harmful information, but that they did so with “actual malice” — meaning that they published the material either knowing it was false or with a “reckless disregard” to whether it was true or false. (This is different from the ordinary meaning of “malice,” as in cruelty or malevolence.) Further, public figures would have to demonstrate this actual malice to a higher standard of proof. The evidence would have to be clear and convincing, not just slightly more likely to be true than untrue. Sullivan’s case fell far short of this standard.

By making libel laws a far less attractive tool for powerful politicians to use to silence their critics, New York Times Co. v. Sullivan safeguarded the fundamental First Amendment principle that everyday people should be able to criticize the government and government officials. In doing so, it also lifted the threat of crushing damage awards against media entities that dared to report on civil rights abuses.

Freedom of association is explicitly recognized as a Constitutional right

When we think of First Amendment freedoms, we naturally think of the five freedoms specifically mentioned in the amendment — religion, speech, press, assembly, and petition. But, in NAACP v. Alabama (1958) the Supreme Court explained that the First Amendment also protects freedom of association.

The case arose when the state of Alabama came up with a sneaky way to try to cripple the NAACP, which opposed laws requiring racial segregation. Using a state law regulating foreign corporations (a legal term that applies to corporations based in other states or countries), Alabama sought to force the NAACP, a New York-based corporation, to turn over a number of internal documents. Those documents would include a list of its rank-and-file members in Alabama, who the state knew would then face harassment, job loss, or worse if their identities were revealed.

Alabama argued that whatever harassment happened to NAACP members would come from private persons, not the state, and therefore the state itself would not be violating NAACP members’ rights. The Supreme Court thankfully saw through this, writing, “The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.”

But the NAACP could not do its work in challenging segregation laws without recruiting plaintiffs who, even in the face of community hostility, would be willing to assert their rights. While

Drawing on prior cases about the rights to free speech, free assembly, and due process, the Court took this opportunity to clarify that the Constitution protects Americans’ freedom to associate with one another. It wrote that the NAACP’s right to keep its membership list private is “so related to the right of the members to pursue their lawful private interests privately and to associate freely with others” as to be protected by the First and Fourteenth Amendments. “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association,” the Court wisely went on to observe, “particularly where a group espouses dissident beliefs.” 

Protest and parade permits must be issued using neutral standards

During the Civil Rights Movement, Southern officials frequently denied marchers or protesters permits to march or protest on public streets, usually hiding behind a litany of excuses. Famed civil rights activist Fred Shuttlesworth of Birmingham, Alabama, successfully challenged this practice. 

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In Shuttlesworth v. City of Birmingham (1969), the Court ruled that Shuttlesworth’s conviction for leading a protest without a permit was invalid, because the city ordinance under which he was convicted was an unconstitutional prior restraint on speech. A “prior restraint” on speech occurs when the government preemptively restricts someone from engaging in expression. While these can be constitutional when dealing with issues like the locations of warships at sea, they are rarely permitted under the First Amendment.

Birmingham’s rules on what demonstrations could receive a permit were so vague that they essentially let the city government arbitrarily decide to grant or deny those permits. This “unbridled discretion,” the Court found, could lead to government officials granting permits to groups whose views they favor and denying permits to groups they disfavor. (Of course, during the segregation era, that’s often exactly what happened.) Instead, the Court explained, there must be “narrow, objective, and definite standards” to guide governing authorities who granted licenses or permits for expressive activity.

Removing barriers to public interest litigation

Alabama wasn’t the only Southern state to attack the NAACP. Virginia officials also sought to target the NAACP for allegedly violating a state law prohibiting “the improper solicitation of any legal or professional business.” Even today, attorneys hoping to score a profitable client are generally prohibited from engaging in direct, face-to-face solicitation of individuals.  

But the NAACP could not do its work in challenging segregation laws without recruiting plaintiffs who, even in the face of community hostility, would be willing to assert their rights. While Virginia argued that this solicitation of potential clients was conduct not protected by the First Amendment, the NAACP asserted that this application of Virginia state law infringed on “the right of the NAACP and its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.” 

The Supreme Court settled the matter in NAACP v. Button (1963), finding that the NAACP’s litigation efforts were “a form of political expression” and emphasizing that “the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.” It further noted that First Amendment freedoms need “breathing space” to survive. 

Ultimately, the Court’s decision in Button protected the rights of public interest groups across the political spectrum — including those, like FIRE, who defend people with any viewpoint — to advocate in court for their cause.