The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP

The First Amendment to the Constitution, Associational Freedom, and the Future of the Country: Alabama’s Direct Attack on the Existence of the NAACP Dr. Helen J. Knowles-Gardner* ABSTRACT Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum.1 These lectures were published two years later in a book entitled The Negro & the 1st Amendment.2 In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of * Research Director, Institute for Free Speech (email: ); Ph.D. Boston University. I would like to extend a debt of gratitude to numerous individuals, without whose support I would not have been able to undertake the research for this Article. First and foremost, I need to thank my wonderful colleagues at the Institute for Free Speech for giving me the very best post-academia professional place to call home. I could not have asked for a better set of people with which to work. And a special debt of gratitude is owed Brad Smith and David Keating for suggesting that I pursue this specific project, and then giving me the time and the institutional support necessary to undertake it in such depth and detail. That support enabled me to do invaluable extensive archival research. At the Library of Congress Manuscript Division, I am indebted to the staff who worked tirelessly to bring me box after box of requested materials, and I am particularly grateful to Ryan Reft for his suggestions of collections to consult. At the Veterans History Project at the Library of Congress American Folklife Center, I am grateful to the staff (especially Megan Harris) for assisting me with accessing and using the Edmon L. Rinehart Collection. I am immensely grateful to all the wonderful staff at the Alabama Department of Archives and History in Montgomery, whose reading room I called home for two weeks. I also spent quality research time at the Alabama State University Archives where I was grateful for the assistance provided by Jason Trawick. For their help in making valuable connections in the Montgomery area, I thank David Alan Hughes, Marty Olliff, and Keith Krawczynski. I also extend my gratitude to David Terry for sharing with me his research on Ruby Hurley. A very special thanks is owed Christine Rinehart Taft for taking time to share with me insights about her father Edmon Rinehart. I presented an earlier draft of this Article at the Annual Meeting of the New England Political Science Association in Newport, RI, on April 20, 2024. I am very grateful to the discussant, Mark Graber, for his exceptionally useful feedback. I am also grateful to the staff of Seattle University Law Review for their outstanding editorial work on this Article. Finally, I owe everything to my husband John, who enriches my life in immeasurable ways (along with our eight felines and one equine). 1. Chicago Lawyer Speaks on Negro, First Amendment, OHIO ST. LANTERN, Apr. 7, 1964; Pam Hollister, Law Professor Says NAACP Gets Civil Rights Litigated, OHIO ST. LANTERN, Apr. 9, 1964. 2. HARRY KALVEN, JR., THE NEGRO & THE 1ST AMENDMENT (1966). 1 2 Seattle University Law Review [Vol. 48:1 Colored People (NAACP).3 Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson4 as an indirect effort to control the NAACP. With the benefit of material obtained from numerous archival sources, this Article argues that Kalven’s categorization of Patterson (and the three other rulings by the Supreme Court of the United States5 that it ultimately took to ensure Alabama’s compliance with the 1958 decision) was mistaken. Instead, the litigation was designed and intended to put the NAACP out of business (which, in Alabama, it did for eight years). On June 1, 1956, the injunction preventing the NAACP from doing business in the state was secured by Alabama’s Attorney General John M. Patterson from Montgomery County Circuit Court Judge Walter B. Jones. This Article is narrowly focused on the two years leading up to, and the first few months following June 1, 1956, and is part of an extensive research project focused on the history of this protracted litigation. Ultimately, Alabama’s injunction led to an effort to compel the NAACP to turn over its Alabama membership lists to the Attorney General. To borrow and only slightly change Jason Robards’s famous line in All the President’s Men,6 nothing was riding on this litigation except the First Amendment, which guarantees the right to peaceably assemble, and the future of the country. CONTENTS INTRODUCTION ..........................................................................................4 I. HARRY KALVEN’S ARGUMENT...............................................................6 A. Kalven’s “Direct Control” Cases .....................................................7 1. Shelton v. Tucker ...........................................................................7 2. Louisiana ex rel. Gremillion v. NAACP ........................................8 3. NAACP v. Button ...........................................................................9 B. Kalven’s “Less Direct Measures”...................................................12 1. NAACP v. Alabama ex rel. Patterson..........................................12 2. Bates v. Little Rock......................................................................13 C. Kalven’s Argument—A Rebuttal Overview .....................................15 II. SIXTY-ONE DAYS IN THE SUMMER OF 1956 .......................................16 3. Id. at 65–121. 4. Nat’l Ass’n for the Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). 5. Nat’l Ass’n for the Advancement of Colored People v. Alabama, 360 U.S. 240 (1959); Nat’l Ass’n for the Advancement of Colored People v. Gallion, 368 U.S. 16 (1961); Nat’l Ass’n for the Advancement of Colored People v. Alabama ex rel. Flowers, 377 U.S. 288 (1964). 6. ALL THE PRESIDENT’S MEN (Warner Bros. 1976). 2024] Associational Freedom and the Future 3 A. Ruby Hurley ....................................................................................22 1. “There Was So Much Work to Be Done.” ..................................24 2. “There Was So Much Work to Be Done”—But It Couldn’t Be Done in Alabama ........................................................26 B. Not a Completely Unexpected Development ..................................28 III. THREE MEN AND A LAWSUIT .............................................................29 A. John M. Patterson ...........................................................................29 1. Gubernatorial Aspirations ...........................................................31 B. Edmon L. Rinehart ..........................................................................33 C. Judge Jones: Speaking for the White Race..................................... (...truncated)