Burch had a defiant, contrarian streak. He seemed born to challenge arrogance and power. “He always didn’t like somebody who would tell him what he had to do,” Cody would say of him years later.7 Burch was a thorn in the side of E. H. Crump, the city’s longtime political boss. As Crump’s electoral machine shifted into high gear to promote its slate of candidates, Burch advocated against them. His views were progressive, yet he straddled the divergent worlds of liberal politics and conservative highbrow society. Even while championing civil rights, he belonged to two of the city’s most privileged and exclusive playgrounds, the Memphis Country Club and the Hunt and Polo Club.
Burch took it upon himself to tear down the wall that excluded black lawyers from the Memphis Bar Association. He plotted with local civil rights leaders to maneuver the Memphis establishment into desegregating the municipal library and other public facilities.
But when he was asked to represent King, Burch hesitated. His firm’s clientele consisted of blue-chip corporations like the Standard Oil Company and the Illinois Central Railroad. Having King as a client “was not the sort of thing they like to see their lawyer engaged in,” Burch would say later.8 Knowing that many Memphians loathed King, Burch ran another risk if he advocated on his behalf. “You’ve got to expect,” Burch would note, “there might be somebody that comes onto the panel [in a jury trial] and says, ‘Well, there’s the goddamn son-of-a-bitch that represented Martin Luther King! That nigger-lover. I’ll fix him.’”9
Before agreeing to represent King, Burch insisted on meeting him, sizing him up face to face. He had questions, doubts that he wanted to put to rest. Was King a reasonable man? Did he really believe in the nonviolence that he espoused? What did he intend to achieve by returning to Memphis? How did Memphis fit into his overall, national strategy at the time?
Now in Room 307 at the Lorraine, Burch took charge. As Walter Bailey would recall, Burch said, at once, “Dr. King, I’m going to get right to the point.” He asked: would King like Burch to represent him? If so, Burch proposed petitioning Judge Brown to lift the pending injunction. King confirmed that indeed he desired Burch to proceed in that manner.
Burch went on, “Now I want to ask a few questions and find out a few things.”10 He asked about King’s view of the rioting on March 28. It had been a “complete fiasco,” King replied, saying that it resulted from “poor planning.”
In the aftermath of the riot, King went on, he believed that his whole future and, in particular, the Poor People’s Campaign, “depended on his being able to have a nonviolent march in Memphis.”11 King said he was under attack from black militants who rejected his approach. To counter the militants, King told Burch, he had to prove in Memphis that nonviolence still worked.12
Burch asked, obliquely, if King would obey the injunction should Judge Brown refuse to vacate his order. King said he would march in any event, even if he had to disobey a court injunction.13
King knew that he would be on weaker legal ground in defying a federal injunction, in comparison with a state injunction. In state court he had disputed segregationist laws as violating his rights under the US Constitution. If King defied an order that the federal judiciary deemed lawful under the Constitution, he might have to fall back on his personal concept of unjust law as his only defense. He had touched on the concept in his famed “Letter from Birmingham City Jail”: “An unjust law is a code that is out of harmony with the moral law . . . that is not rooted in eternal law and natural law.”14 That is, King was saying that on his own authority he could decide which laws were just or unjust under natural law.
Justifying civil disobedience on the basis of natural law posed a problem for King because it endorsed a principle on which others might act in ways he regarded as objectionable. Why couldn’t a man who was a segregationist, for example, contend that his concept of natural law justified disobeying court orders that mixed the races in schools or in marriage?
Burch suggested a strategy that might rescue King from the dilemma of either obeying a federal injunction or defying it on the legally flimsy basis of a natural law defense. He told King to expect that Judge Brown probably would not lift his order without insisting on some restrictions to minimize the chance that the march might turn violent. Burch said that if King would agree to abide by restrictions that would minimize the risk of violence, the judge might allow the march to go forward. Yes, King told Burch, he would accept such terms.
Burch would say later of King, “He completely reassured me that [his intention] was not phony in any degree and that it was just exactly what it was represented to be, the right of these people to express by assembly, petition, and demonstration what they felt was a just grievance.”15 King did not appear to be phony or deceptive at all. Rather, Burch remembered him as plainspoken and straightforward.
Someone asked King which group he feared more, white racists or Black Power militants. David Caywood, one of the young associates with Burch, recalled King responding that it “could easily be either group, but that wasn’t the issue. The issue was to do whatever was necessary to make the [march] safe.”16 Thus reassured, Burch had no second thoughts about representing King. He would earn no fee. He was taking the case pro bono.
Looking back on the Burch-King meeting, Cody would recall the hushed atmosphere in the room. Except for Burch and King, almost nobody uttered a word. Cody knew the story about Burch’s skeet-shooting adventure with Hemingway. As the story had it, Burch
