Why would a black man defend the Klan?
Because I feel so strongly about free speech, says black American lawyer David Baugh, currently representing an imperial wizard of the Ku Klux Klan
Barry Black is the 'imperial wizard' of a Ku Klux Klan (KKK) group in Virginia, USA. He was arrested in August 1998 following a KKK rally, where he was seen setting fire to a 22-foot metal cross wrapped in fabric. When he couldn't find an attorney in that part of the state to represent him, he contacted the American Civil Liberties Union (ACLU). I decided to take the case.
When I told Black I was African American, he said he had no problem with that. We agreed that we were not going to be friends. But I made it clear to him that I would not try to convert him, and that I was not trying to prove a point. The constitution is at stake, and he does not have to do anything to earn the right to representation.
Virginia has a statute that says it should be unlawful to burn a cross anywhere in the state with the intent to intimidate anybody. Additionally, any time you burn a cross, that is prima facie evidence of intent to intimidate. The bottom line is, you cannot put two sticks together. And it is a felony which carries a five-year sentence. On 23 February a white male was convicted under the same statute in the eastern end of the state. An interracial couple had moved into the neighbourhood and this guy was burning a cross in their garden.
The Virginia statute flies in the face of existing case law, and the theory of the first amendment. The constitution of the United States is based on the idea that no concept is so disgusting that it cannot be discussed in the free marketplace of ideas. It is my position that, as the law says, you can regulate conduct but you cannot regulate expressive conduct so as to prevent that form of expression.
If Virginia was to rule that it would be illegal to burn anything to intimidate somebody, that would be a lawful statute, subject to a lot of other constraints. But they have said here that it is unlawful to burn a cross, indicating that the purpose of the statute is not to eliminate intimidation or arson or burning as a form of intimidation. The purpose is to suppress the idea that is conveyed by the burning of the cross. That is the regulation of expression. And we can't have that.
I feel so strongly about free speech because I utilise my first amendment right all of the time. I believe that one of the great privileges of being an American is that you can tell anybody to kiss your butt, so long as you don't mind getting punched in the face. You cannot regulate expression, and I believe that's necessary for democracy.
Freedom of expression normally gets attacked on the extremes. People want to regulate the expression of the Klan, the black movement, the Jewish Defence League. They want to prevent these people, these fringe minorities, from making their statement. Well, if you can regulate their speech you can regulate everybody's speech. The only way to ensure that everybody, that I, have the right to free expression, even about ideas in which I might be in a minority, is to protect everybody's rights. The majority, or the loudest person, doesn't get the right to dictate what others can say.
I have received some very positive reactions to my taking on this case. Most of those who have disagreed have said that I shouldn't take the case because, although this man may be entitled to an attorney, he is not entitled to an African-American attorney, and I should represent African Americans.
This idea is stupid. If I were to follow the logic that I shouldn't represent this man - even though I think his constitutional rights are being violated - because his words are potentially harmful to African Americans, then I should not defend an African American charged with selling drugs to African-American kids. That act is clearly destructive to the African-American lifestyle and community - in fact it probably has a far greater detrimental effect than a bunch of beer-bellied white boys running around in sheets.
My oath is to the constitution, and the constitution in the long run protects everybody. Those are my 10 commandments, that's my Bible, those are my principles, and my duty is to adhere to those principles. Like some people who have been raised with a lot of money don't appreciate it, people who have been raised with the protection of the constitution of the United States don't appreciate the extent of those protections. We take them for granted, we think of them as a hindrance sometimes. I would say that every day the constitution is threatened by our complacency and our lack of appreciation of the protections it affords. I hope that cases like this cause people to talk about their constitutional rights, and from that will come understanding, and from that understanding they will see that in the long run, protecting the rights of others protects your own rights.
I got involved in the ACLU when I was expelled from college for leading a demonstration. Then I became an assistant US attorney, a federal prosecutor, but I got fired for asking a judge why he put the black people I convicted in jail for longer than the white people. My normal practice, as a criminal lawyer, is rape, murder and drug dealers. But in mid-February I was contacted because our local police went to a neighbourhood bookstore and seized all the copies of Playboy and Penthouse. That's my next case.
I know that the challenges to the freedoms that we aspire to have in the United States don't come from foreign shores. They come from right here in America.
David Baugh was talking to Jennie Bristow
Reproduced from LM issue 119, April 1999