Under Color of Law

Abstract

I am delighted to be here for a number of reasons. My wife, Pamela Horowitz, and I have a long association with the Southern Poverty Law Center--her first job out of law school was as a staff attorney with the Center, and I was the Center's first president and a longtime board member. Having heard the Center's staff sing her praises for years, we had the pleasure of meeting Dean Benson in Montgomery earlier this year. It's a pleasure to see her again, and it is always a pleasure to be with Judge Keith. I first met the Judge during the case that became known as the Keith Case. (3) Which involved, among other things, a Michigan poet named John Sinclair. He was the manager of the Detroit rock band known as MC5, and even worse, a founding member of the White Panther Party, described by Wikipedia as a far-left, anti-racist, white American political collective. (4) Sinclair became a cause celebre among members of the 1960s counter-culture when he was sentenced to twelve [sic] to nine and a half years in jail for possession of marijuana in 1969. (5) He was also charged with conspiracy to destroy government property, having to do with bombing a CIA office in Ann Arbor. (6) During the prosecution of Sinclair's case, Judge Keith certified me as an expert witness on youth. I was then thirty-one years old. It was also revealed that the government, in the person of Attorney General John Mitchell, had authorized the use of warrantless wiretaps, claiming domestic security needs. It was this part of the case, and not my testimony, that led to its landmark status. Judge Keith, our judicial hero, ordered the government to dispose (of) all of the Defendant's illegally obtained conversations, and the government appealed all the way to the Supreme Court. Writing for the majority, and upholding Judge Keith, Justice Powell said: The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. (7) To my delight and surprise, I got to see John Sinclair last year when he was performing in a bar in New Orleans. It was great to see him, as it is to see Judge Keith tonight. Now for a non-lawyer like me, it is always an honor to appear before lawyers and others in the legal field--as long as it isn't in a courtroom. Now my first appearance before a judge was in a courtroom, when I was twenty years old. It was March 1960, during the Jim Crow era. I had led a group of my fellow students to the segregated cafeteria in the basement of Atlanta's City Hall. We passed along the steam tables loading our trays, and as first in line, I approached the cashier. Like most Southerners, she was polite and she told me, "I'm awfully sorry, but this is for City Hall employees only." "But," I said, "you have a large sign outside that says 'City Hall Cafeteria--the Public is Welcome.'" "We don't mean it," she said. And she called the police who came and locked us up. Because nearly 200 of us had been arrested that day in various locations around Atlanta, it was decided to try one person for each group, and I was chosen to represent mine. For the first time in my life I stood before a judge. On either side of me were two men I had never seen before; I quickly understood they were my lawyers. After some back and forth the judge and my lawyers, the judge asked me, "How do you plead?" and I was panic-stricken. On the one hand, I knew I was guilty--a policeman had asked me to leave and I had refused. But I didn't feel guilty--I knew I had a right to eat in that tax supported cafeteria, and that any law that said I couldn't was no law at all. I desperately looked to my left where the elder of my two lawyers was standing. …