How Louisiana Forums Redefined Free Speech
Americans are a fun-loving people, and a lot of the fun to be had is out in public. Americans travel by public transit to eat at public restaurants, go to watch a parade in public, or find a good book to read at the public library.
What Americans don’t often like to see in public is injustice, protests, or acts of bigotry. When such unpleasant events emerge in full view as they did in the 1960s, Americans must confront the challenge of how to handle unpopular ideas in public spaces. Four landmark decisions in Garner v. Louisiana (1961), Taylor v. Louisiana (1962), Cox v. Louisiana (1965), and Brown v. Louisiana (1966) inform the historic fight for free speech of a different sort in the deep South.
Act One: Lunch Counter Controversy
The capital city of Baton Rouge takes pride in its flagship of higher learning: Louisiana State University, prominently situated near downtown on a tree-lined, lakeside campus. The city’s aristocracy loves this venerated institution, yet it is less likely to fawn over its historically distant black neighbor, Southern University, tucked away out of sight on the city’s north side. This racial apartheid was on full display in 1960, when Southern’s students seized seats reserved for whites at lunch counters in Sitman’s Drugstore, Kress Department Store, and the Greyhound bus station in Baton Rouge. Moving against this public statement with unusual force were Baton Rouge police, who arrested, charged, and convicted them for trying to “disturb or alarm the public” under a state law (See Title 14, Article 103(7) La. Criminal Code).
After appeals were exhausted before Louisiana courts, the U.S. Supreme Court under Chief Justice Earl Warren accepted the case of Garner v. Louisiana (1961). The stage was set in this courtroom drama pitting Louisiana’s legal establishment against President Kennedy’s Justice Department, marching in concert with the National Association for the Advancement of Colored People. The civil rights team’s leading voice was Thurgood Marshall, a future Supreme Court justice who fought to change these separate and unequal circumstances.
In the unanimous December 1961 ruling of Garner v. Louisiana, the high court found no convincing proof of a breach of peace at those lunch counters in Baton Rouge. Assoc. Justice John Marshall Harlan ruled this sit-in demonstration deserved full constitutional protection. One might assume Garner would be convincing to Baton Rouge officials since it only meant granting the same constitutional rights to African Americans as it had done for union organizers and suffragettes, but it would take three more high court rulings to make that point clear.
Act Two: Boarding the Bus
Six African Americans were convicted of violating Louisiana’s breach-of-the-peace statute in Shreveport. Four of the blacks walked into the white waiting room at a bus depot to buy tickets and board a bus bound for Jackson, Mississippi. Noticing the racial lines had been crossed, Shreveport’s chief of police asked the men why they were seated in that part of the building, advising them to go wait in the colored waiting room. When the four men refused to leave, they were threatened with arrest, and their spokesman is quoted as replying, “go ahead and arrest us” (370 U.S. at 155).
Testimony at their trial indicated onlookers at the bus station climbed onto seats to get a better view, but otherwise the evidence of unruly or violent behavior was never shown. In fact, the men were “quiet, orderly, and polite” (370 U.S. at 156). In 1962, the Supreme Court soundly rejected Louisiana’s argument that “the mere presence of Negroes in a white waiting room was likely to give rise to a breach of the peace” (370 U.S. at 154).
Act Three: A Parade of Protesters
The next story began during the 1961 Christmas shopping season, when 23 African American protesters started picketing a segregated restaurant. Local police responded and charged them with illegal picketing. The next day, Congregationalist minister B. Elton Cox came to their support by securing permission to bring an estimated 2,000 protesters from Southern University to march across the street from where they were held in jail.
Rev. Cox’s exhortations on the sidewalk for whites and blacks to come together caught the attention of white employees in the central business district. Assoc. Justice Goldberg described the scene:
They then sang “God Bless America,” pledged allegiance to the flag, prayed briefly, and sang one or two hymns, including “We Shall Overcome.” The 23 students who were locked in jail cells in the courthouse building out of the sight of the demonstrators responded by themselves singing; this, in turn, was greeted with cheers and applause by the demonstrators. (379 U.S. at 543)
It was not this part of the demonstration that agitated police but the manner in which Cox told the crowd to disperse. Baton Rouge police responded by using tear gas on the protesters. The minister was arrested and charged with provoking a breach of the peace, picketing near the courthouse, and obstruction of a public passageway. Rev. Cox was convicted on all three counts and lost all appeals at the state level. Louisiana’s legal solidarity against integration ultimately gave way to a Supreme Court justice when Justice Goldberg, who might have recalled his earlier life as a special counsel for the AFL-CIO, defended Cox’s First Amendment right to use public picketing in protest against unfair circumstances.
Still, the Court had to deal with the three convictions, and the first to fall was the conviction for a breach of the peace because the evidence showed it to be a peaceful protest. The Court was unanimous on that point, further holding the Louisiana law unconstitutional based on its overbroad terms. The vote of the justices was split on the other two charges, but both times the majority voted in the Baton Rouge minister’s favor.
Act Four: The Library
By 1964, ten years had elapsed since the landmark Supreme Court case Brown v. the Board of Education of Topeka, Kansas (1954) held school segregation to be in violation of the Equal Protection Clause of the Fourteenth Amendment. When the U.S. Supreme Court accepted its fourth case from Louisiana, Brown v. Louisiana, the scene shifted from the schoolhouse to the public library. Books were available for loan to African American residents in the library branches of East Feliciana, West Feliciana, and St. Helena Parishes, but all of them were segregated. Blacks were unwelcome in any of the branch libraries, and if they tried to board the red bookmobile rather than the blue one, they quickly learned the red bus served whites only.
The lead plaintiff in this case was Henry Brown, an African American joined by four others when he entered a library branch in 1964. He requested a book, “The Story of the Negro”, which was found at a distant library following confusion over the book’s author. The librarian advised it was not available in that parish but promised to request it for him so he could either check it out later or have it mailed to him. Brown then sat in the one chair available to him in the small building with fellow demonstrators standing nearby. The librarian asked them to leave, but they held their ground.
The lawyer for Louisiana argued they were not reading anything but were just staring into space. An officer arrested all four for violating a breach-of-the-peace statute. They were tried and convicted, and the state supreme court denied their appeals, prompting a federal petition. A plurality opinion from the Supreme Court concluded the evidence could not support the disturbing the peace charge in the library, which was less disruptive than earlier incidents in Louisiana.
Coda: Speech Plus
The civil rights drama that unfolded in Louisiana’s public spaces during the 1960s still defines the forums of free speech and speech plus today, even though it did take four Supreme Court decisions focused on the lunch counter, the bus station, city square, and public library to underscore how important unpopular ideas are to free expression. Using breach-of-peace laws, the custom of dividing races by segregation was maintained, but once the idea of desegregation was freely expressed in Louisiana, it showed how the popular opinion can be just plain wrong.
About the author: William R. Davie is the BORSF Regents Endowed Professor in Communication and coordinator of the broadcast sequence in the Department of Communication at the University of Louisiana at Lafayette.
Featured image: Sitman’s Drugstore was among the locations of important free speech incidents during the 1960s.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Brown v. Louisiana, 383 U.S. 131 (1966)
Cox v. Louisiana, 379 U.S. 536 (1965)
Garner v. Louisiana, 368 U.S. 157 (1961)
Taylor v. Louisiana, 370 U.S. 154 (1962)