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Black Protest and the Limits of Debating the First Amendment

The real issue is the constitutional right to equal protection.

Members of the Indianapolis Colts stand and kneel for the national anthem prior to the start of the game between the Indianapolis Colts and the Cleveland Browns at Lucas Oil Stadium on September 24, 2017, in Indianapolis, Indiana. (Photo: Michael Reaves / Getty Images)

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.”

Let’s put this in concrete terms. Donald Trump’s recent attack on African American athletes who “take a knee” was his declaration that not only are Black folk not entitled to freedom of speech, but we are also not entitled to freedom from unreasonable searches and seizures, to equal protection, and to due process — that is, to rights guaranteed by the Fourth and Fourteenth amendments of the US Constitution. His “get that son of a bitch off the field right now” was thus a broad constitutional assault.

Considered in light of the GOP’s hostility toward voting rights and Jeff Sessions’s attempt to revive the draconian war on drugs (itself a war on the Fourth Amendment that has been conducted in part to disenfranchise and imprison African Americans), Trump’s attack must be viewed as yet another salvo in the GOP’s decades’ long war against the Reconstruction Amendments — particularly as they had been given new life during the brief tenure of the Warren Court. As such, “get that son of a bitch off the field right now” was an assertion that Black folks have no rights that the state and private citizens are bound to respect.

By focusing primarily on the First Amendment implications of Trump’s diatribe (and, subsequently, the diatribes of his supporters), critics generally have failed to appreciate its broader constitutional implications, as well as its assault on the very idea of full citizenship rights for African Americans. This, in turn, enabled many critics (including champions of civil rights) to reduce the athletes’ protests — even while acknowledging the issue of police violence — to a “right to protest,” i.e., to a right to exercise the freedom of speech.

To recast resistance to police violence, and the Trump-like reactions to that resistance, in primarily First Amendment terms, is truly the privilege of those who are not the primary targets of Fourth and Fourteenth amendment violations, or of the war on the spirit, letter and force of the Reconstruction amendments. For ultimately it is a strategy that reifies — even if unintentionally — African American subordination.

While demands for “free speech” abound at police protests, often absent are calls for constitutional rights framed specifically as such; for example, “Equal protection now!” or “We have a right to due process!” Only by taking command of the language of rights will we be able to change the trajectory of these discussions on police protests and give the other constitutional rights — as well as the question of Black freedom — the full attention and focus they deserve.

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