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Author’s Note: This article was written in connection with the 50-year reunion of the 1965 graduating class at the University of North Carolina at Chapel Hill.
When you look back over 50 years to your time at UNC, what shaped your life more – the courses you took and the books you read, or the people and events you encountered outside the classroom?
In my case, the answer is clear: I was privileged to have many great teachers at Chapel Hill, but I became a First Amendment lawyer because of Jesse Helms and the Speaker Ban Law.
I will never forget professors like O.B. Hardison, Andy Scott, Clifford Lyons, J. O. Bailey, Walter Spearman and Peter Walker, but my most important influences were people like UNC President Bill Friday, Chancellor William Aycock, Campus “Y” director Anne Queen and UNC alumnus McNeill Smith, all of whom I got to know well because of our shared antipathy toward the Speaker Ban Law.
Here’s my story.
When Dr. Martin Luther King, Jr. and other civil rights leaders organized anti-segregation boycotts and demonstrations in Birmingham, Alabama in May of 1963, T.E. “Bull” Connor, Birmingham’s Commissioner of Public Safety, responded by ordering police and firemen to turn police dogs and high-pressure fire hoses on the demonstrators, many of whom were children. The shocking images of the violent confrontations that television brought into my fraternity’s chapter room hit me in my gut. For me – and, I now know, for many other white southerners – those images caused me to think seriously for the first time about something that up until then I had more or less taken for granted: racial segregation.
I was not the only North Carolina student who was moved by the events in Birmingham. Galvanized by the images of youngsters fleeing from fire hoses and police dogs, students from Shaw University staged sit-ins at Raleigh theaters and restaurants, protested at the Sir Walter Hotel where most members of the General Assembly stayed during the legislative session, and swarmed over the grounds of the Governor’s Mansion while Governor Terry Sanford hosted the annual North Carolina Symphony Ball.
Although Governor Sanford defused the symphony protest by appearing on the south porch of the mansion and offering to meet with the protesters, some other prominent citizens reacted very differently. Jesse Helms, who was then an on-air editorialist for WRAL-TV, saw the protests as evidence of Communist influence, especially at colleges and universities. In June he praised the Ohio legislature for proposing a bill to restrict speakers at their universities, suggesting that it “should also provide a lesson for the rest of us.” Four days later, on the last day of the legislative session, the General Assembly leaders suspended the rules and rushed through what became known as “the Speaker Ban Law,” which prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities.
I wasn’t even aware of the law until shortly before I returned to Chapel Hill for my junior year, and even then it didn’t galvanize my attention like the great March on Washington, which occurred on August 28, or President Kennedy’s assassination on November 22. By the spring of 1964, however, the Speaker Ban was very much on my mind. Thanks to firm but measured opposition arguments advanced by Chancellor Aycock and President Friday, I had come to understand that the law posed a serious political and a philosophical threat to the University and the concept of academic freedom. I also saw it as a personal insult; did Jesse Helms and his allies really think that I and my fellow students were so naïve and gullible that we could not be permitted to hear a communist speaker, lest we enlist in the Red Army?
The Speaker Ban loomed like a cloud over our senior year at Chapel Hill. As co-editor of The Daily Tar Heel I wrote editorials decrying the law. More importantly, my position drew me into a wide and varied circle of students, faculty, administrators, alumni and others whose common goal was to remove the cloud from UNC’s academic reputation. The moral and intellectual leaders of the group were President Friday and Student Body President Bob Spearman. Anne Queen, who hosted frequent Sunday brunches at which the conversation was fueled by sherry and Bloody Mary’s, was our de facto social chairman; the regular attendees at her soirees included my hometown state senator, Ralph Scott; Joel Fleishman, Governor Sanford’s administrative assistant; UNC law professor Dan Pollitt; Duke law professor William Van Alstyne; and UNC alumnus Jim Exum, who was then practicing law in Greensboro.
In addition to exposing me to such heady conversation and company, the Speaker Ban also led, unexpectedly, to my long friendship with Charles Kuralt. We met when Charles, who had been editor of The Daily Tar Heel in 1954, came to Chapel Hill in the summer of 1964 to do a story about the law for “The CBS Evening News with Walter Cronkite” and we stayed in touch thereafter. Thanks to the Speaker Ban, my wife and I have fond memories of sitting in on the broadcast of “Sunday Morning” followed by gracious lunches with Charles afterward.
The Speaker Ban also led to my acquaintance with J. McNeill (“Mac”) Smith, the Greensboro lawyer and former DTH editor who, with Professors Pollitt and Van Alstyne, filed the federal lawsuit that eventually resulted in the Speaker Ban being declared unconstitutional. During 1963 and 1964 President Friday, Chancellor Aycock and others, including the Consolidated University’s Board of Trustees, had tried diligently, but unsuccessfully, to persuade the General Assembly to repeal or amend the law. By the spring of 1965 it had become apparent to many opponents of the ban that our only hope lay in a federal lawsuit, which Mac Smith volunteered to handle pro bono.
Although I and other student leaders were willing to be named as plaintiffs, two factors delayed the suit. Many of the would-be plaintiffs were graduating in June; more importantly, the lawyers worried that the lawsuit might be dismissed for lack of “standing” unless the students directly challenged the law by inviting one or more prohibited speakers to the campus and having them turned away.
Shortly after we graduated in June the situation was further complicated by the General Assembly’s creation of a special commission to review the law. President Friday and others felt that the ban’s opponents should give the group, which was known as “the Britt Commission,” the opportunity to do its work. In the end the commission recommended, and the General Assembly decided, that the law should be amended to make the University’s trustees and administrators accountable for enforcing a “speaker policy” that gave lip service to a diversity of viewpoints while simultaneously mandating that campus talks by anyone whose appearance would have been prohibited by the law should be “infrequent” and “rare.” By then I was in law school, Bob Spearman was a Rhodes Scholar at Oxford, and the torch had passed to another cohort of student leaders. In 1966, Student Body President Paul Dickson, DTH editor Ernie McCrary and others forced the issue by inviting Frank Wilkinson and Herbert Aptheker to speak on campus and filing suit when their appearances were forbidden by Chancellor Carlyle Sitterson and the UNC Board of Trustees.
Personally, I would have liked to have been a plaintiff in the Speaker Ban lawsuit, but in the end the most important thing was that in their misguided attempt to curtail UNC’s academic freedom and my First Amendment rights, Jesse Helms and his friends inadvertently provided me with the opportunity to understand and treasure them more deeply, to meet Mac Smith and others who became my friends and mentors, and to find my calling.
On January 29, 2015 I was surprised and flattered to find myself the recipient of the J. McNeill Smith Award from the North Carolina Bar Association’s Constitutional Rights Section. As I said in the following acceptance remarks, this award is particularly special to me because I was fortunate enough to know the great lawyer for whom it is named.
“Mac” Smith is one of my heroes. I met him in Chapel Hill in 1964 or 1965 when, as co-editor of The Daily Tar Heel, I was involved with a group of students, faculty, administrators, alumni and friends of the University of North Carolina who were actively working to repeal or overturn the notorious Speaker Ban Law. Mac had been editor of the DTH in 1938, so we made a connection.
As most of you know, the Speaker Ban prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities. It was passed in 1963, primarily as the result of saber-rattling by Jesse Helms, who was then an editorialist for WRAL-TV. Helms and his allies saw student participation in civil rights protests as evidence of “communist influence” at colleges and universities, especially UNC.
Mac and other lawyers, including UNC law professor Dan Pollitt and Duke law professor William Van Alstyne, were thinking seriously about challenging the law in federal court as early as 1964. Together with other student leaders, I was willing – indeed eager — to be a plaintiff, but the passage of time and events – including the General Assembly’s amendment of the law in 1965 to make the University’s trustees and administrators responsible for prohibiting campus appearances by “communists” and other anti-American speakers – resulted in delay. Ironically, that amendment made it necessary for any suit challenging the Speaker Ban to be filed against Mac’s own alma mater and its leaders.
It was not until 1966 that Mac and Professors Pollitt and Van Alstyne filed Dickson v. Sitterson, the federal lawsuit that eventually resulted in the Speaker Ban Law being declared unconstitutional; consequently, I missed out on the opportunity to be a plaintiff. That honor fell instead to Ernie McCrary, who had succeeded to the editorship of The Daily Tar Heel. In the meantime, spurred in large measure by the insights I had gained from the Speaker Ban fight, I had put aside my intention to become a journalist and entered law school at Chapel Hill. That’s why I often say that I became a constitutional lawyer because of two people: Jesse Helms, who tried to curtail my First Amendment rights, and Mac Smith, who fought to preserve them.
Mac’s papers, which are in the Southern Historical Collection at UNC’s Wilson Library, reflect the hundreds of hours of planning, research and preparation that he expended in his dogged pursuit of the Speaker Ban case. They also show that except for a few hundred dollars contributed by members of newly-formed North Carolina Civil Liberties Union, which was established in direct response to the Speaker Ban, he handled the suit without pay.
The defeat of the Speaker Ban Law was only one of many important legal victories in Mac Smith’s distinguished career, but I have focused on it today because it provided me with a personal connection to one of North Carolina’s greatest lawyers, and which led directly to my love for constitutional law. I am honored beyond measure to receive an award bearing the name of my friend, mentor and role model, McNeill Smith.