How to Lose Friends and Influence First Amendment Freedoms
At peril to his own popularity,Anthony Griffin slugs it out for free speech and civil rights
Published in 2005 Texas Super Lawyers magazine
on September 22, 2005
Updated on February 22, 2017
Anthony Griffin is too hot to handle, even for his potential law partners.
More than 20 years ago, Griffin and two other lawyers made plans to set up a law practice together in Galveston. They prepared for it the whole summer, but at the last minute the others backed out, leaving Griffin holding the lease on the office building.
“They had met the night before and both realized that I wouldn’t be able to keep my mouth shut, and I would keep them in trouble,” says Griffin. “I was angry for years. And then one day I realized that they were so right. They were wise women. I stayed, and it was a fight for me from there on.”
Today, he’s in a different office building, one that would win hands-down the prize for most nondescript law office in Texas. The small white brick box hides behind a tree on a quiet residential street, away from the Strand and the crowds. On the door, in small letters, the word “Lawyers” is the only hint of what takes place there. Inside, though, Griffin is still fighting, and he’s still causing trouble.
Because of the nature of the legal fights that Griffin gets into, many involving emotionally charged First Amendment issues, the relative anonymity of his building has served its purpose over the years. “We’ve been involved in cases that were controversial, and people got mad at us for one reason or another.
“Controversial” is an understatement. Here’s a newspaper headline from one of those controversial cases: “Black Lawyer Giving His All to the Klan.” That kind of news doesn’t play well in the African-American neighborhoods of Galveston and around Texas as a whole. Worse, the headline has shock value but is completely misleading.
Griffin has been savaged by the press and he’s been praised as a hero. In the course of doing his job — and following his conscience — he has been hurt by a misunderstanding of him he believes was bred by careless newspaper stories.
Griffin believes there will never be a consensus about him because there are few First Amendment purists in the country, and he counts himself solidly as one of those. “People are selfish and tend to believe in rights only when they affect us,” he says. “Whether we’re to the right of center or to the left of center or even in the center, we’ll fight till the cows come home for our rights, but not for the other person’s rights. If my group wins, it’s okay.”
But Griffin tries to consider the rights of groups beyond his own, and he uses the First Amendment as a guide. He also relies on a lifetime of training and pretty strong familial inspiration to get him through.
“I do this out of a sense of just plain fairness,” he says, “the kind of fairness you’re taught by your mom’s values, which aren’t based on race or money or class.” Those aren’t just platitudes from Griffin, either. He says his most important case was his very first trial as a licensed attorney. “It was my mom’s case,” he says. “It was a civil rights case involving equal pay for equal work. What better gift can you give a parent than the assurance of their civil rights?”
Still, when talking with Griffin, you can’t help but notice the 2-ton elephant in the room. It has followed him around for more than 10 years and it’s not about to be ignored. Griffin knows that writers are going to ask about it, and he sits across the conference room table simply waiting. That elephant is the Ku Klux Klan.
“If I had to do it again, I would cringe and go, ‘Oh, no!’ and then do it all over,” Griffin says about his decision in 1993 to represent Michael Lowe, a member of the Klan. Lowe had refused to turn over his organization’s membership lists to the state of Texas, and being in legal hot water he went looking for an attorney. He was referred to Griffin by both the ACLU and someone at the Houston Post — just that he was a fighter for the First Amendment.
“So, Lowe walks in needing a lawyer,” says Griffin. “Some clients may not like you, but they got a problem and they need you. He was no different.”
Thus began a press field day. Griffin believes the media failed to portray him with any depth. “What upset me was all the press reported about was an African-American man defending the Klan,” he says. “What the papers didn’t report was that I was simultaneously working on a case in Arkansas representing folks and their voter rights and working on other affirmative action cases at the same time.”
Griffin says the relationship with Lowe was cordial enough as the two of them were preparing for trial, though a nervous undercurrent existed. “He tried to get me to twist in the wind on occasion, telling me that the Klan was going to come to Galveston and have a march in my honor,” says Griffin. The amazing thing to witness, though, is how Griffin laughs about all this. His voice is merry and light. It’s really the first time he’s laughed whole-heartedly during the interview. “Oh, I’d get my licks in, too.” Griffin jabbed right back about how Lowe was not allowed to wear his usual wardrobe to court. “I told him when we win, I ain’t gonna hug him.”
Griffin was disturbed by the negative reaction from colleagues, friends and national groups over his decision to represent Lowe. The Texas branch of the NAACP, of which he had served as general counsel, eventually relieved him of his duties.
Still, Griffin powered through the case, arguing that the same U.S. Supreme Court ruling in 1958 that protected the NAACP’s membership files applied to the Klan’s files today. Ironic? Absolutely. A tough case to sell? Without a doubt. But did this have anything at all to do with race or the Klan? No way.
“I wasn’t fighting for the Klan,” Griffin says with the exasperation of a man who has had to explain such a fundamental point for far too long. “Folks like me are in the trenches every day fighting for the Constitution, and that was the only thing this case was about.”
After a favorable verdict from the Texas Supreme Court in 1994, Griffin felt he had to do damage control. “You find yourself spending two years of your practice on the road explaining why [your position in the case is] important. You lose close to a couple million dollars in revenue based on that,” says Griffin. “It was a high price to pay, but it was vital for me to go out and explain why that fight was important.”
After the opprobrium brought on by his Klan case, you’d think the guy would take a break from controversial cases. In fact, reaction to his next case made the Klan case reaction appear tame: prayer in school. And, to make the whole matter a little juicier — just because it was Texas — he took on prayer at high school football games.
At issue in the Santa Fe Independent School District v. Jane Doe case was whether the school district had engaged in proselytizing practices, including allowing students to broadcast Christian prayers over the public address system at home football games.
“It comes from sitting in classrooms as a kid and seeing how unfair [prayer in school] is. Sitting there thinking, why are we praying to Jesus Christ when that person next to me is Jewish? Early on you’re thinking that this is insulting and unfair,” explains Griffith, knowing that by taking the case he was inviting a second elephant to take up residence in his office.
So let’s just skip through all the usual threats of violence and statements of impending hellfire that come with trying such a case; and we can even just gloss over the fact that Griffin’s own sister was openly rooting for the opposing side’s attorney. Let’s just get to the U.S. Supreme Court, which is where Griffin found himself on March 29, 2000, arguing this case.
“In court — whichever court I am in — I take a position that the worst-case scenario is going to happen,” he says. “But that doesn’t mean I’m going to lose. It means my task is to change everybody’s mind and get them thinking like me.”
By court-watchers’ accounts, it’s plain that Griffin did influence the court. He says he was relaxed most of the time, and even slightly cocky as the subject came down to Texas football and the pragmatic points of the case as they apply to real human beings. When the justices fired away at him about why it would be prudent to apply the Establishment Clause to a football game, he replied that “football is football, in Texas,” alluding to its near-sacred standing with much of the public.
CHIEF JUSTICE REHNQUIST: Well, it may be more important in the eyes of lots of people than classes, but is different in that nobody — am I right in saying that nobody is required to go to a football game?
GRIFFIN: The band, Chief Justice, is. One of our plaintiffs was a band member.
REHNQUIST: Well, say, students. Students who are not in the band or on the team.
GRIFFIN: Students who are not in the band, the cheerleaders, anyone who supports the team.
JUSTICE ANTONIN SCALIA: Is anybody forced to be a cheerleader, or a band member, or a football player?
GRIFFIN: When you’re a teenager, yes. Satisfied with his efforts, Griffin left Washington, D.C., that night and flew back home to appear in municipal court the next day. Griffin says the judge in Galveston was so surprised that Griffin actually showed up that he made a speech to the court: “Yesterday Mr. Griffin was in the highest court in the land, and today he has bothered to show up in the lowest court. This is why the process works on all levels.”
“And he was right. I still have to fight everywhere. I was embarrassed, though, when the audience stood and clapped,” says Griffin. Never knowing whether he’ll wake up a demon or a savior in the public’s mind, he at least found respect in the process that day. It’s probably the best that a First Amendment purist can hope for most days. Except for two things.
First, a win in the Supreme Court. In a 6-to-3 decision in 2000, the U.S. Supreme Court sided with Griffin. Second, to receive one of the highest awards a First Amendment lawyer can get.
About the Supreme Court win, Griffin says he wasn’t really surprised. “I knew what to expect,” he says. “I had met Justice [Ruth Bader] Ginsberg previously when I received the Brennan Award, and she had told me war stories from the court. I knew how to conduct myself in there.”
The Brennan Award? For the record, that would be the William J. Brennan Jr. Award from the Thomas Jefferson Center for the Protection of Free Expression, an honor he was given partly for his work on behalf of the Michael Lowe case.