Black Protest and the Limits of Debating the First Amendment

by Alycee Lane, Truthout | Op-Ed –

This is how African American protests of police violence, and reactions to them, generally unfold:

African Americans protest. Some people respond by attacking the protesters as un-American or anti-police or worse. Others counter by defending the protesters on First Amendment grounds. From here, a robust First Amendment debate ensues, during which the protests get recast in First Amendment terms. And while some people try to redirect the conversations back to the issue of police violence, they are rarely successful. Consequently, First Amendment freedoms prevail as the protests’ defining issues.

And yet, African Americans march or sit-in or hold up traffic or “take a knee” — that is, exercise First Amendment free speech and assembly rights — precisely to protest the routine violation by the police, and thus the states, of our Fourth Amendment right to be free from unreasonable searches and seizures; our Fourteenth Amendment right to due process of law; and, our Fourteenth Amendment right to “the equal protection of the laws.”

More broadly, however, we exercise our freedom of speech and freedom to peaceably assemble in order to insist that the nation uphold the letter, spirit and promise of the Reconstruction amendments that were adopted soon after the Civil War in order to secure the full citizenship rights of free and formerly enslaved Black people.

Ratified in 1865, the Thirteenth Amendment abolished slavery and involuntary servitude, “except as a punishment for crime whereof the party shall have been duly convicted.” The ratification of the Fourteenth Amendment occurred soon thereafter. Not only does it require due process of law and equal protection of law to all people; but it also defines as citizens all people who are born in the United States. Finally, the Fifteenth Amendment — ratified in 1870 — prevents the denial of a citizen’s vote based on race, color or previous condition of servitude.

Never have the spirit and force of these amendments been fully embraced by this nation. Indeed, less than 30 years after the Fifteenth Amendment was ratified, the Supreme Court in Plessy v. Ferguson (1896) upheld state racial segregation laws, and thus ushered in the long, violent and repressive Jim Crow era defined by the political, economic and social subjugation of African Americans. Though the decisions of the Warren Court (starting with Brown v. Board of Education in 1954), coupled with the organized resistance of the civil rights movement, would eventually put an end to Jim Crow, the nation’s commitment to African American subordination persists.

Indeed, the fact that the police routinely stop, search and arrest Black people — especially the poor — without reasonable suspicion or probable cause (and often with the use of unreasonable force); subject African Americans disproportionately to unreasonable searches and seizures; kill unarmed Black people as a matter of course — most often with impunity and certainly without due process; and then, outfitted in military gear, attack Black people who dare to exercise their First Amendment rights to challenge these injustices, is entirely symptomatic of this nation’s continued failure to embrace the promise of the freedom amendments. It is also part and parcel of the concerted efforts by some of our countrymen and women to make these amendments as ineffectual as is legally permissible.

As important as it is to confront attempts to silence African Americans’ protests of police, the First Amendment debates by and large subordinate to the freedom of speech and the freedom of assembly, the other equally important constitutional rights expressed in the Fourth and Fourteenth amendments. In fact, the debates often implicitly produce a constitutional hierarchy that — at least with regards to African Americans — elevates the First Amendment and assigns a lesser value to the Fourth and Fourteenth Amendments. Indeed, they give the impression that what’s at stake is not a host of constitutional rights and values, but instead only one constitutional right (the First Amendment) and “social justice” or “police misconduct.”