African Americans and the First Amendment

Timothy C. Shiell

Description

2020 CHOICE Outstanding Academic Title

African Americans and the First Amendment is the first book to explore in detail the relationship between African Americans and our "first freedoms," especially freedom of speech. Timothy C. Shiell utilizes an interdisciplinary approach to demonstrate that a strong commitment to civil liberty and to racial equality are mutually supportive, as they share an opposition to orthodoxy and a commitment to greater inclusion and participation. This crucial connection is evidenced throughout US history, from the days of colonial and antebellum slavery to Jim Crow: in the landmark US Supreme Court decision in 1937 freeing the black communist Angelo Herndon; in the struggles and victories of the civil rights movement, from the late 1930s to the late '60s; and in the historical and modern debates over hate speech restrictions. Liberty and equality can conflict in individual cases, Shiell argues, but there is no fundamental conflict between them. Robust First Amendment values protect and encourage demands for racial equality while weak First Amendment values, in contrast, lead to censorship and a chilling of demands for racial equality.
Preface
Acknowledgments

1. American Apartheid

2. A Pivotal Case

3. The Civil Rights Movement

4. Hate Speech

Notes
Bibliography
Index

Sujets

• National
• États-Unis
• Central
• History of the Americas
• Central government
• Ethnic studies
• United States of America
• USA

Informations

• Publié par: State University of New York Press
• Date de parution: 15 juillet 2019
• Nombre de lectures: 0
• EAN13: 9781438475837
• Langue: English

Extrait

AFRICAN AMERICANS
AND THE
FIRST AMENDMENT
SUNY S ERIES IN A FRICAN A MERICAN S TUDIES
JOHN R . HOWARD AND ROBERT C . SMITH , EDITORS
A FRICAN A MERICANS and the F IRST A MENDMENT
The Case for Liberty and Equality
TIMOTHY C. SHIELL
Published by State University of New York Press, Albany
© 2019 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.
For information, contact State University of New York Press, Albany, NY
www.sunypress.edu
Library of Congress Cataloging-in-Publication Data
Names: Shiell, Timothy C., author.
Title: African Americans and the First Amendment : the case for liberty and equality / Timothy C. Shiell.
Description: Albany : State University of New York Press, 2019. | Series: Suny series in African American studies | Includes bibliographical references and index.
Identifiers: LCCN 2018045644| ISBN 9781438475813 (hardcover : alk. paper) | ISBN 9781438475837 (e-book)
Subjects: LCSH: African Americans—Civil rights. | Freedom of speech—United States.
Classification: LCC KF4757 .S525 2019 | DDC 342.7308/508996073—dc23 LC record available at https://lccn.loc.gov/2018045644
10 9 8 7 6 5 4 3 2 1
This work is dedicated to all the people who exercised their freedom of speech, assembly, association, press, religion, and petition to promote racial equality, to those who are doing so, and to those who will do so in years to come.
CONTENTS
Preface
Acknowledgments
1 American Apartheid
2 A Pivotal Case
3 The Civil Rights Movement
4 Hate Speech
Notes
Bibliography
Index
PREFACE
Courts in the United States have made bold statements about the significance of freedom of expression for more than 100 years. Consider three examples:
Freedom of speech and press have always been supposed to be the very cornerstone of Anglo-Saxon democratic institutions. 1
If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. 2
Freedom of thought and speech … [are] the matrix, the indispensable condition, of nearly every other form of freedom. 3
In the 1960s, Harvard University law professor Thomas Emerson expressed a scholarly consensus that free speech is not the only social good but is essential to achieving the others (such as public order, justice, equality, and moral progress). Therefore, these other values must be pursued by regulating action, not expression. 4 In that same era, the First Amendment values of freedom of religion, free press, free assembly, and the right to petition were widely recognized as essential to the African American struggle for equality culminating in the successes of the civil rights movement. David Hudson Jr. writes, “the First Amendment played a crucial role in the epic struggles of the civil rights movement of the 1950s and’60s when Dr. Martin Luther King, Jr. and countless others engaged in sit-ins, protests, marches and other demonstrations to force social change.” 5 Hudson quotes many other First Amendment experts to indicate a consensus on this conclusion, including Jack Greenberg, director-counsel of the NAACP Legal Defense and Educational Fund from 1961 to 1984; Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression; Robert Richards, founding director of the Pennsylvania Center for the First Amendment at Pennsylvania State University; and journalism professors Linda Lumsden and Margaret Blanchard.
This civil rights era consensus on the importance of free speech and the consonance of free speech and racial progress has been fractured because of two main factors. First, progress in racial equality seemed to stagnate and even regress in the 1970s and 1980s. Second, hate speech incidents, especially at universities and colleges, have been attracting significant scholarly and public attention since the late 1980s. Legal scholars began to challenge the idea that the First Amendment is our first freedom and supports racial progress. Owen Fiss wrote “the firstness of the First Amendment appears to be little more than an assertion or slogan.” 6 An increasing number of scholars began to advocate broad bans on hate speech that curtailed existing free speech rights, which they believed were necessary to make more gains in racial equality. For example, Richard Delgado and Jean Stefancic recommended universities enact speech codes punishing “severe personal insults,” including insults based on body shape or poor parking (“you idiot, why did you take up two spaces?”) and insults based on race, gender, or sexual orientation (“you fag, you’re going straight to hell”). 7 Alexander Tsesis proposed laws that prevent “disparaging stereotypes from ingraining themselves in the social conscience” and prohibit charismatic leaders from “harnessing racist, xenophobic, and anti-Semitic ideologies to further discrimination and achieve ruinous objectives” regardless of whether these expressions pose any direct or immediate threat of harm. 8 Catharine MacKinnon proposed a revival of the long-abandoned bad tendency test and the group libel doctrine to punish offensive speech. 9 Mari Matsuda argued that members of dominant groups should be banned from using hate speech against members of nondominant groups, but members of nondominant groups should not be similarly restricted. 10 The idea that liberty and equality are in fundamental conflict has attracted substantial attention, 11 and surveys show widespread support for censorship of offensive expression. 12 Some have gone further to argue that disrupting, shutting down, or violently opposing offensive expression is justified.
This book argues that First Amendment values, particularly freedom of expression, have been—and continue to be—essential allies in the struggle for racial equality and justice. Liberty and equality can and do conflict in some cases, but these values are not in fundamental conflict. This distinction has important implications. The misconception that they are in fundamental conflict has been detrimental to the cause of racial equality in many important ways. Rather than urge greater restrictions on expression, advocates of racial equality and justice should remain committed to robust free speech rights and exercise that right vigorously. The argument is laid out in four chapters.
Chapter 1 demonstrates the role First Amendment values (not law)—especially free speech—played in racial progress from the colonial era to the 1930s. I use the phrase “American apartheid” to refer to this era, in which a pervasive system of legal, political, economic, and social inequality was imposed by whites on African Americans and was supported by restrictions on speech, press, assembly, petition, and religion. Likewise, the denial of equality supported the denial of liberty. Yet the defiant exercise of liberty (First Amendment values) against the status quo inequality played a crucial role in the racial progress that was achieved. The chapter focuses on African Americans but also addresses other groups to demonstrate the long reach of the oppression of equality and suppression of liberty. Some important milestones covered include the slave clauses in the US Constitution, the Cherokee Nation Cases, the abolitionist movement and Dred Scott decision, and the series of Supreme Court decisions from the 1870s to the 1890s deconstructing Reconstruction and civil rights laws. Even when slavery was outlawed, African Americans remained targets of organized terror and victims of systemic social, economic and political subordination, especially but not exclusively in the Jim Crow South. Inequality was buttressed by restrictions on liberty. There was extensive censorship of and mob violence directed at African Americans and other minorities, labor activists, political dissidents, and free thinkers. The strong First Amendment legal rights we know today did not begin to develop until after World War I persecution of dissenters and its concomitant condemnation of “radical immigrants.” The US Supreme Court finally used the First Amendment in 1931 to protect free speech ( Stromberg v. California ) and free press ( Near v. Minnesota ) from state suppression.
Chapter 2 supports the conjunction of liberty and equality through an examination of Angelo Herndon’s pivotal case, culminating in the Supreme Court decision Herndon v. Lowry (1937). Herndon, a black communist, was arrested in Atlanta, Georgia, for inciting insurrection during the Great Depression under a law originally enacted as an anti-abolitionist, anti–slave revolt statute. Despised by many for the color of his skin and his political beliefs, Herndon found legal support from a determined fringe organization. Even when he lost at trial, on appeal to the Georgia Supreme Court and in the US Supreme Court in 1935, his struggle for justice continued. His plight attracted national and international attention and support, and his lawyers found a new basis to pursue his freedom. This time he won at trial but lost again on appeal to the state supreme court. In a stunning turnaround, the US Supreme Court found in his favor in 1937. It was the first time the court protected a black man’s speech and the first time it struck down a Southern speech restriction. Herndon’s case is