Neal v. Still
Neal v. Still was a case decided by the Arkansas Supreme Court in 1970 that addressed issues of free speech and free expression. After thoughtful deliberations, the Arkansas Supreme Court held that the statute under which the alleged violators, Joe and Barbara Neal, were arrested and charged was unconstitutionally vague and violated the free speech rights guaranteed by the U.S. Constitution.
The case had its roots in the February 21, 1969, arrest of Joe Neal and his wife, Barbara Wink Neal, on the campus of Henderson State College (now Henderson State University) in Arkadelphia (Clark County). The couple, who were distributing information at the college’s Student Union Building, was charged with violating Act 17 of 1958, which prohibited creating a disturbance on school property. Specifically, they were charged with using loud and offensive language while also distributing offensive literature designed to enflame the emotions of other students.
The law the Neals were charged with violating was the last of a series of laws passed at the 1958 special session of the legislature called by Governor Orval Faubus in his efforts to prevent the desegregation of Arkansas’s public schools, especially Little Rock’s Central High School. The law made it a misdemeanor to enter school property “and while therein or thereon…create a disturbance, or breach of the peace in any way whatsoever, including, but not limited to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace.”
Joe Neal did not fit the stereotypical model of someone whose dissenting actions would result in a legal victory for the First Amendment. While a student at the University of Arkansas (UA) in Fayetteville (Washington County) in 1967, he had worn his Army ROTC uniform for his yearbook picture and was the president of the university’s Young Republicans Club. However, by 1969, the recent college graduate had become the state organizer of the Southern Student Organizing Committee (SSOC), a progressive organization based in Nashville, Tennessee, that pursued an agenda promoting civil rights, union organization, and opposition to the Vietnam War. Neal and his wife, who was the corresponding secretary of the Arkansas SSOC, traveled around the region talking to students and others about the SSOC’s issues.
There is some confusion as to the exact nature of the Neals’ actions at Henderson State, but Joe and Barbara Neal both recalled that they had been invited by a student or student group to share information about the SSOC and its efforts. Apparently, an attempt by students to secure a specific meeting room was rebuffed, but the Neals were happy to meet in the Student Union, where they were peacefully talking with a group of students when authorities arrived. Some reports say it was Dean of Students Thomas Scifres and a police officer, although years later Joe Neal recalled that initially it was just Scifres who asked him to leave; when he refused, Scifres said he was going to get the police. Barbara Neal recalled that she and Joe did not think they could allow themselves to be forced to leave while they were in the middle of talking with students about exercising their own rights. She said that when they refused to leave, the police officer arrested them for refusing to obey a police officer, but when they were taken to the police station, they were formally charged with creating a disturbance on school property, a violation of Act 17.
After they were arrested and taken to the police station, they were separated and then interrogated. They were accused by the police of being communists and subversives. They said that the police sought to intimidate them but engaged in no physical abuse.
Neal was ultimately allowed to make a phone call. He called Dr. Ben Drew Kimpel, an English professor at the University of Arkansas, who agreed to put up bond for the couple’s release. He also called the newly opened Arkansas American Civil Liberties Union (ACLU) office, then headed by Mort Gitelman, a law professor at the University of Arkansas. Neal in fact knew Gitelman from his time at the University of Arkansas.
Gitelman arranged for Jim Guy Tucker, one of his former students and then a young attorney with the Rose Law Firm, to represent the Neals. There is some question about when Tucker took the case—he says it was after the Neals were found guilty in Municipal Court, while Gitelman says it was from the beginning. The trial before an antagonistic judge, J. E. Still, resulted in a guilty verdict, and the Neals were fined the maximum penalty of $500 each and sentenced to six months in jail. The jail sentence was suspended, provided the couple not return to Arkadelphia.
Following the verdict, Tucker, with the support of his firm, decided to appeal. While the ACLU offered to pay for the appeal, the firm decided to handle it pro bono. The appeal, with a brief written by Tucker, went straight to the Arkansas Supreme Court, where it became the first case in which the newly created Arkansas ACLU received a decision from an Arkansas court.
By a 5–2 decision, the court overturned the Neals’ conviction, ruling that Act 17 was unconstitutional. The court’s opinion, authored by Justice Lyle Brown and issued on June 22, 1970, declared, “It is difficult to conceive of language more vague than that which declares one a law violator when he ‘creates’ a disturbance or a breach of the peace ‘in any way whatsoever.’” Brown went on to say that the same was “true of the language which makes it a misdemeanor to use offensive talk.’” After assessing the rest of the act in similar fashion, Justice Brown closed by writing that the act “should be, and is hereby, declared unconstitutional in its entirety.”
Justice John Fogelman, joined by Justice J. Fred Jones, dissented, arguing that the language of the statute in relation to the actions of the accused was clear, but in the end the court’s decision represented a clear victory for free speech advocates as well as the wiping away of a last vestige of the contentious desegregation battles of the 1950s.
For additional information:
Morris, David N. “Neal v. Still: Unconstitutional Suppressions of Campus Speech.” In First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays, edited by Stephen A. Smith. Fayetteville: University of Arkansas Press, 2016.
Neal v. Still, 455 SW 2d 921 – Ark: Supreme Court 1970. https://www.leagle.com/decision/19701376455sw2d92111334 (accessed May 5, 2021).
William H. Pruden III
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