Project Confrontation

When King arrived in Birmingham in March 1963, he was full of doubts and the movement was sputtering. The Montgomery bus boycott of 1955–56 had nearly been defeated, saved mainly by a Supreme Court decision declaring segregated busing unconstitutional. During the 1961–62 desegregation campaign in Albany, Georgia, King’s plans were so circumscribed by court orders and mass arrests that his movement beat a reluctant retreat. No serious civil rights legislation was in the offing. The segregation of everything in the South, from water fountains and pools to elevators, buses, and schools, remained more or less intact. Challenges to King’s leadership grew.

The plan in Birmingham, which King had worked out with other civil rights leaders, was to use Easter week to challenge segregation in one of the nerve centers of the Jim Crow South. The movement would spend the first part of the week building support and organizing direct actions like lunch counter sit-ins, pickets at boycotted businesses, voter registration marches, and kneel-ins at white churches. Project Confrontation, as King and other leaders like Fred Shuttlesworth and Wyatt Tee Walker called the plan, would culminate in a massive march on Birmingham’s downtown on Saturday, April 13. Easter Saturday was the busiest shopping day of the season so the march would be maximally disruptive, threatening business profits, shopping plans, and the deeper habits and expectations sedimented in the city’s economy.

Birmingham’s white leadership quickly mobilized in response. On Wednesday, April 10, Commissioner of Public Safety Bull Connor dispatched lawyers to get an injunction against the planned marches. Connor’s lawyers went to Judge William Jenkins, who was known for issuing anti-labor injunctions. Injunctions had been regularly used to repress strikes in the United States since the late nineteenth century and were frequently used in Birmingham, an industrial city.

Jenkins issued his injunction, a sweeping prohibition of nearly every conceivable tactic of the movement. He prohibited “mass street parades or mass processions . . . congregating on the street or public places . . . parading, demonstrating, boycotting, trespassing and picketing or other unlawful acts, or . . . ‘kneel-ins’ in churches.” On Thursday evening, Connor’s men walked the injunction over to the Gaston Motel, where the movement leaders were staying.

They were devastated — “overwhelmed by a feeling of hopelessness,” according to King. To make matters worse, city officials raised the financial and criminal penalties for disobeying the injunction. Disregarding the court order would mean long prison terms for the movement’s leaders and massive fines that threatened to bankrupt their organizations. But obeying the injunction would be just as bad, destroying momentum and defanging the movement.

It looked like they were trapped, doomed to repeat the failure of the Albany campaign.

The Injunction Problem

Beyond its practical challenges, the injunction posed a political and philosophical problem for King. King didn’t have any problem breaking the law. Quite the opposite. “The doctrine of legal change had become the doctrine of slow token change” was King’s mantra in the post–Brown v Board of Education world — change would have to come through illegal acts. But while King was willing to violate the law, he hadn’t been willing to challenge the rule of law or the courts and government authority that sustained that rule.

Before Birmingham, King wanted to distinguish the law-breaking of his movement from that of the segregationists. The latter openly violated court-ordered desegregation and engaged in terrorist violence. King’s camp obeyed court orders, including injunctions, and respected the legal process. Segregation statutes and city ordinances could be disobeyed; courts, as representatives of the rule of law, had to be heeded. This was classic civil disobedience: conscientious disobedience coupled with respect for the legal order. In Montgomery (1955–56) and Albany (1961), King had insisted that the movement could only challenge injunctions in court. They were not to be disobeyed outright.

But the injunctions presented a major obstacle. Courts had carpeted the South with the legal orders, creating a dense fabric of repression. In 1956 an Alabama court had enjoined the National Association for the Advancement of Colored People (NAACP) from operating anywhere in the state, which the Supreme Court only overturned in 1964. In 1961 a local judge barred Freedom Riders from entering Montgomery, Alabama — an injunction that, along with one in Albany in 1962, prohibited members of the Student Non-violent Coordinating Committee (SNCC) from engaging in most of their sit-ins, boycotts, and demonstrations. In Baton Rouge, Louisiana, injunctions prevented the Congress on Racial Equality (CORE) from demonstrating against segregation. In late 1963, injunctions in Jackson, Mississippi and Charleston, South Carolina would stop the NAACP from leading demonstrations there.

“The injunction method has now become the leading instrument of the South to block the direct-action civil-rights drive and to prevent Negro citizens and their white allies from engaging in peaceable assembly,” King wrote. “You initiate a non-violent demonstration. The power structure secures an injunction against you. It can conceivably take two or three years before any disposition of the case is made.”

SNCC leaders argued for violating injunctions. King refused. Then came Birmingham.

From Civil Disobedience to Something More

On the Thursday night that the civil rights leaders received the Birmingham injunction, everyone (save for the radical Shuttlesworth) counseled against violating the order: they just couldn’t afford the long prison sentences and fines. Somebody phoned Harry Belafonte to start raising more money. They debated late into the night and continued the next morning.

Then King went into his hotel room, got on his knees, and prayed. He emerged with a decision. It was time to disobey the injunction — never mind the courts and the appeals process.

On Friday the movement’s leaders held a press conference announcing their decision to disregard the injunction. They explained:

In the past we have abided by Federal injunctions out of respect for the forthright and consistent leadership that the Federal judiciary has given in establishing the principle of integration as the law of the land.

However we are now confronted with recalcitrant forces in the Deep South that will use the courts to perpetuate the unjust and illegal system of racial separation.

Alabama has made clear its determination to defy the law of the land. Most of its public officials, its legislative body and many of its law enforcement agents have openly defied the desegregation decision of the Supreme Court. We would feel morally and [legally] responsible to obey the injunction if the courts of Alabama applied equal justice to all of its citizens.

Here was a new relationship to the courts and the legal process. The movement’s leaders were openly stating that the last and putatively most independent branch of government in the South had shown itself to be just another instrument of segregation. The “machinery of state government and police power,” as they called it, had lost its legitimacy. After speaking to the press, they proceeded with their illegal, Good Friday March towards the Birmingham City Hall, during which King, Ralph Abernathy, and a few others were arrested. By Easter Sunday, the rest of the leadership would be taken into custody for leading illegal processions that weekend.

It is a historical irony that Birmingham is remembered as the iconic act of civil disobedience, for this was the moment that King decided the authority of the state itself had to be questioned. The very moment for which he is lionized is the point at which he and his fellow leaders became something more than civil disobedients.

King was well aware of the momentousness of the decision. In Why We Can’t Wait (1964), his history of the Birmingham campaign, King noted, “We did an audacious thing, something we had never done in any other crusade. We disobeyed a court order.”

The movement had issued a challenge to the courts to recognize that the legal order — the courts, the system of appeals, the judges, and officials in state legislatures and the administrative branches — was incapable of delivering even nominal justice. The question now was how the state would respond.

Walker v. Birmingham

The immediate reaction was mass arrests, which quickly turned into a series of court cases. When these challenges finally started arriving at the Supreme Court, in 1967, they presented a problem for the justices. In prior civil disobedience cases, the Court had ruled that if the underlying city ordinance or segregation statute was unconstitutional, violating those laws was no crime. Two years later, in 1969, the Court would hold that the act of marching without a permit in Birmingham was not illegal, since the permit law was unconstitutionally vague and enforced in a racially discriminatory fashion.

But flouting Judge Jenkins’s injunction was a different matter. In Walker v. Birmingham (1967), Justice Potter Stewart wrote that while “the breadth and vagueness of the injunction itself” might be a “constitutional question” subject to debate, the proper venue for that debate was in a court of law. Yet the protesters, Stewart lamented, “did not even attempt to apply to the Alabama courts for an authoritative construction of the ordinance.”

According to Stewart, refusing to challenge the injunction in a court of law was worse than the injunction’s potential unconstitutionality, because the protesters were taking the law into their own hands while rejecting the authority of the courts and the state itself. That, of course, was King and company’s view, though they claimed that the courts were incapable of administering the law in an impartial and independent fashion, a point the Supreme Court refused to consider. Instead, Stewart cited the Friday press conference, in which the leaders explained why they no longer felt “morally and legally responsible to obey the injunction” as evidence of their contempt for the law and legal process.

The Walker ruling was a kind of act of containment. It tried to confine racial injustice and constitutional rot to certain branches of the Alabama state government. The Court refused to see how deeply that injustice and rot affected the entire court system. After the Court handed down its ruling in 1967, King found himself flying on a plane back to Birmingham, preparing to serve out the sentence that had been meted to him and his comrades three years earlier.

We do not normally tell the story of Birmingham as having much to do with Supreme Court. Marches, arrests, protests, jailhouse letters, children, dogs, and firehoses are the stories of Birmingham.

But the Supreme Court needs to be part of the story. Because Walker didn’t come out of nowhere. King’s actions brought to the surface something that had been buried deep in the Supreme Court’s institutional memory. In explaining how the ruling was “firmly established by precedents,” Justice Stewart’s majority opinion revived a piece of legal reasoning the Court had first perfected decades earlier while repressing labor strikes. The lasting significance of Walker is not the ruling itself but the historical threads it unintentionally pulled together.

From King to Debs

To find a “firmly established precedent” in Walker, the Court reached back nearly fifty years to a little-known 1922 case called Howat v. Kansas. Alexander Howat was an anarcho-syndicalist who led an illegal wildcat strike in Kansas against a mining company. Facing an injunction, Howat and the miners stayed on strike. They didn’t bother to appeal the order. “In Howat’s view,” historian James Pope writes, “courts, legislatures, and corporations had ‘joined together to chain men to their jobs and crush the life out of organized labor of the entire country.’”

The strikers dismissed the courts as a legal authority; judges, they felt, were the tools of employers.

The labor action became what Pope calls a “constitutional strike”: rather than appeal the injunction in court, the strikers claimed for themselves a constitutional authority to disobey. The illegal strike was a way of asserting their civil liberties while simultaneously asserting that the courts had lost their legal authority.

Howat’s hostility towards the courts was widely shared. Anti-strike injunctions had been a fact of life for decades, so much so that the period between 1894 and 1932 is known as the era of “government by injunction,” a phrase coined by socialist leader Eugene Debs. Injunctions turned conflicts between strikers and their employers into conflicts between workers and the state. They gave legal sanction to violent state repression, turning government action against strikes into wholesale suspensions of basic civil liberties.

Only later, with the Norris-LaGuardia Act (1932) and Wagner Act (1935) — and modest court victories like NLRB v Jones & Laughlin Steel (1937) and Hague v. CIO (1939) — did workers win some reprieve. Even then, various state agencies continued to constrain labor organizing and strikes.

“Your Civil Liberties,” a 1940 pamphlet from the Congress of Industrial Organizations (CIO), publicized a number of these measures. A Milwaukee anti-labor ordinance, for example, proclaimed: “It is hereby made unlawful for any person to circulate or distribute any circular, handbill or other printed matter in or upon any sidewalk, street, alley, wharf boat landing, dock or other public place, park or ground, within the City of Milwaukee.” Other ordinances prohibited assembly, boycotting, picketing, and marching — many of the very same activities that civil rights protesters would later be enjoined from in the South.

Howat was not acting spontaneously nor idiosyncratically when, in 1920, he ignored the courts. He expressed a view shared across labor leaders and the rank-and-file, born of years of experience, that injunctions were the weapon of a class-conscious judiciary defending the interests of employers.

In Howat v. Kansas, the Court ruled that regardless of the injunction’s constitutionality, the court had the authority to issue it. Disobeying the injunction without first challenging it in court threatened the rule of law. That was the precedent Steward seized on in Walker. Citing Howat, he declared, “Disobedience of [court injunctions] is contempt of [the court’s] lawful authority.”

But if Howat was the precedent for Walker, what was the precedent for Howat? Two cases were especially important: in re Debs (1895) and Gompers v. Bucks Stove & Range Co. (1911). In re Debs rose out of the 1894 Pullman Strike, the first major national strike to provoke an injunction, which inaugurated the decades-long use of that tool. Initially, the strike’s leader, Eugene Debs, cautioned workers to obey the law and refrain from violence: “We want to win as becomes law-abiding citizens.” Soon, however, railroad corporations colluded with US attorney general Richard Olney, a former railroad official, to secure a series of injunctions. President Grover Cleveland sent federal troops to Chicago, and Olney declared martial law from Illinois to California.

Unable to continue the strike without placing himself and his union in direct conflict with the state, Debs called for a general strike and was arrested for violating the injunction. The Supreme Court ruled that Debs was guilty of putting himself above the law. “Is it to be assumed that these defendants were conducting a rebellion or inaugurating a revolution,” the Court wrote, “and that they and their associates were thus placing themselves beyond the reach of the civil process of the courts?” The answer was yes.

To Debs there was no meaningful “civil process of the courts.” The state, including its courts, had become an instrument of class rule: “The organized forces of society and all the powers of the municipal, State, and Federal governments were arraigned against us.” A year later, he restated his case in a statement he wrote with Samuel Gompers:

Immense forces [are] held at the call of corporate capital for the subjugation of labor. For years the railroad interests have shown the lawless example of defiance to injunctions . . . They have displayed the utmost contempt for the Inter-State Commerce Law, have avoided its penalties . . . In this disregard of law these corporations have given the greatest impetus to anarchy and lawlessness. Still they did not hesitate, when confronted by outraged labor, to invoke the powers of the State. The Federal Government, backed by United States Marshals, injunctions of the courts, proclamations by the President, and sustained by the bayonets of soldiers and all the civil military machinery of the law, have rallied on the summons of the corporations.

Just as King would point to the segregationists’ unpunished murders and disobedience of desegregation orders, Debs and Gompers pointed to the “anarchy and lawlessness” of corporations as evidence that the legal order bore no relationship to its self-image.

The experience with Pullman and subsequent strikes informed the otherwise conservative Gompers’s participation in the events leading to Gompers v. Bucks Stove, the second precedent for the Howat court. Gompers and other leaders of the American Federation of Labor had decided to violate an injunction that, among other things, forbade the use of their national paper to advertise a boycott of the Buck’s Stove company. The injunction even forbade them from making public the text of the injunction.

According to Gompers, “when it comes to the choice between surrendering my rights as a free American citizen or violating the injunction of the courts, I do not hesitate to say that I shall exercise my rights.” Gompers is, for good reason, not normally considered a part of any radical tendency in the US labor movement. It is all the more notable that he nonetheless appears in this story. Even Gompers was willing to disregard legal process, ignore the courts, and endorse the right of workers to act under their own authority.

His actions prompted a lower court judge, whom the Supreme Court would cite approvingly in Gompers v. Bucks Stove, to say: “Are controversies to be determined in tribunals formally constituted by the law of the land for that purpose or shall each who falls at odds with another take his own furious way?”

Additionally, the judge claimed, “If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent . . . and what the Constitution now fittingly calls the ‘judicial power of the United States’ would be a mere mockery.” More than the ruling itself, this piece of dicta was what interested the Howat court. For that court, Howat was just another labor leader, like Gompers and Debs before him, insolently taking the law into his own hands and undermining state authority.

From King to Howat to Gompers and Debs runs a bright line of legal continuity, judicial anxiety, and radical disobedience. At each moment, the central drama was not disobedience of unjust laws but open challenge to the courts and the state as a whole. These historical figures shared roughly the same sense of why the courts had lost their authority: major portions of the state were in the control of a group who used the legal order to systematically oppress others.

It is well-known that King had a long-standing connection to a labor-civil rights coalition. But this is sometimes taken to be something like a union of separate movements or coalition of alliance of shared interests. The King-Howat-Gompers-Debs connection reminds us how deep the connection runs and how tightly bound it was to a willingness to threaten the state’s authority. None of these historical figures, in the relevant historical moments, set their organizations up as separate states nor announced themselves as “the people” suspending the Constitution to create a new one. They were not, at those moments, revolutionaries. But their disobedience was more fraught and vertiginous than what comes to mind when we think of civil disobedience.

The profound political differences among these figures are also familiar and important to keep in mind. But it is equally important, and even less well-known, that they ended up on the same side of this story regarding the nature and scope of mass disobedience. As we have seen, this is a story that has played such a deep, if poorly understood, role in shaping our public memory, the institutional politics of the court, and the self-understanding of mass movements.

King, Howat, Gompers, and Debs were engaged in a principled rejection of the state’s authority. They created a kind of legal void, an absence of accepted legal authority. They did so because anything less radical failed to measure up to the injustice they faced and the state power arrayed against them.

King Today

King’s connection to the radical wing of the labor movement was not just a matter of the precedent on which he was convicted. At the very moment that Justice Stewart and the Walker Court were reaching backward, to the history of labor repression, to send King to jail, King was looking forward, to rehabilitate some of the labor movement’s historic tactics.

He had spent the latter part of 1967 working on the Poor People’s Campaign, which was based on King’s growing awareness that segregation was no mere regional problem to be solved by the tactics deployed in the South. For King, segregation was a wedge into the systematic injustice of the American political economy as a whole. The scope of the problem called for new tactics:

In the South, a march was a social earthquake; in the North, it is a faint, brief exclamation of protest. Nonviolent protest must now mature to a new level to correspond to heightened black impatience and stiffened white resistance. This higher level is mass civil disobedience. 

More than disruption for the sake of disruption, the social earthquake King envisioned had to confront unjust institutions where they were most vulnerable. These new tactics had to be “a force that interrupts [society’s] functioning at some key point.” One such tactic was the mass strike.

Thus King found himself, at the end of his life, calling for mass illegal strikes. On February 4, 1968, only a few months after finishing his prison term in Birmingham, and two months before his assassination, he gave a sermon known as “The Drum Major Instinct.” Speaking of Jesus, King said,

He was only thirty-three when the tide of public opinion turned against him. They called him a rabble-rouser. They called him a troublemaker. They said he was an agitator. He practiced civil disobedience; he broke injunctions. And so he was turned over to his enemies and went through the mockery of a trial.

The speech was a real act of defiance. It wasn’t merely that King was fresh out of jail, having served his post-Walker, injunction-related sentence from Birmingham. King was also rallying support for striking sanitation workers in Memphis, who, among other things, were facing an injunction against their pickets and protest marches.

A few weeks later, King addressed the strikers themselves. “And so just as I say, we aren’t going to let any injunction turn us around. We are going on.” He wasn’t just encouraging disobedience, he was urging escalation:

Never forget that freedom is not something that is voluntarily given by the oppressor. It is something that must be demanded by the oppressed . . . If we are going to get equality, if we are going to get adequate wages, we are going to have to struggle for it. Now you know what? You may have to escalate the struggle a bit . . . just have a general work stoppage in the city of Memphis.

King even saw the general strike as a kick-off event for the Poor People’s Campaign itself.

King was assassinated in Memphis a few weeks later, calling for mass civil disobedience in the form of a general strike. That is the real King. The radical King. The unpopular King. The person to celebrate and commemorate.