Abstract

Excerpted From: Chloe M. Bartholomew, "From Standing Rock to the Swamp": A Thirteenth Amendment Approach to Speech Suppression in Sacrifice Zones, 101 New York University Law Review 211 (April 2026) (416 Footnotes) (Full Document)

“ [W]e refuse to be silent .... We demand the right to protect our land, our water, and our future .... We won’t stop fighting. We can guarantee you this. We will not stop fighting. From Standing Rock to the bayou, our resistance continues. ” --Anne White Hat, 2025

“NOLA STANDS WITH STANDING ROCK: STOP THE BAYOU BRIDGE PIPELINE,” proclaimed a banner held by Cherri Foytlin at a 2017 protest. Foytlin, an Afro-Indigenous Din’e activist, stood on the frontlines that day. Just under a year later, law enforcement officers moonlighting for a private security company arrested sixteen Water Protectors (and a journalist) protesting the very same pipeline.

Since 2017, the members of the L’Eau Est La Vie resistance camp--known as “Water Protectors”--have fought the construction of the Bayou Bridge Pipeline in Louisiana’s Cancer Alley, *214 an eighty-five-mile stretch of land between Baton Rouge and New Orleans. As explained in the documentary L’Eau Est La Vie (Water Is Life): From Standing Rock to the Swamp , the pipeline completes the tail end of the Dakota Access Pipeline and “choke[s] the life out of [the] community.” It crosses traditional Atakapa-Ishak land, threatens the United Houma Nation’s water supply, and ends in the majority-Black community of St. James Parish. It also continues a trend that started at least six decades ago, in which the petrochemical and fossil fuel industries have subjected the communities in Cancer Alley to extreme pollution, environmental costs, and health risks, the burdens of which fall with tremendous asymmetry on Black and Indigenous residents.

This fight has increasingly moved to legislatures across the country. In the past ten years, jurisdictions across the United States, including Louisiana, have witnessed an explosion of fossil-fuel-industry-backed *215 laws targeting anti-pipeline and anti-critical infrastructure protestors. The oil and gas industry’s concentrated effort at silencing dissent nationwide has escalated since 2016, when Indigenous Water Protectors began leading the Dakota Access Pipeline demonstrations at Standing Rock. In passing these laws, state legislators have sought to criminally punish activists who voice dissent against the siting of infrastructure in their communities.

By speaking out against the disruptive construction of pipelines, petrochemical plants, and other so-called critical infrastructure, activists resist a long trend in which local governments designate these regions as “sacrifice zones.” In these areas, local governments allow companies to build polluting industries and facilities that subject residents to severe health and safety risks, including respiratory illness, cancer, and organ damage. Residents face an impossible choice: uproot their lives and leave their (sometimes ancestral) homes, or stay and risk the severe harms that industrial plants inflict by churning out plastics and chemicals into the air.

Moreover, critical infrastructure sites disproportionately displace and harm communities of color, thus reproducing racial violence and deepening racial inequality. Robert Bullard, the father of environmental justice, once said: “[S]ome people and some neighborhoods have the wrong complexion for protection.” Recently, some have deemed such environmental racism “the new Jim Crow.” Indeed, activists in Louisiana’s Cancer Alley have argued that the discriminatory placement of petrochemical facilities in predominantly Black communities constitutes a relic of slavery. In cracking down on these communities’ opposition to the creation of sacrifice zones atop *217 their homes and in their neighborhoods, state legislatures and the oil and gas industry silence Black- and Indigenous-led racial justice movements across the country. Private actors fortify these silencing efforts by playing an outsized role in introducing legislation, initiating lawsuits against protestors, and even surveilling protestors and having them arrested.

Using dissent in sacrifice zones as an example, this Note argues that modern suppression of racial justice protest hearkens back to speech suppression practices with deep ties to slavery. From “slave codes” in the 1600s to the Black Codes in the Reconstruction era to Jim Crow laws in the 1960s to white supremacist violence throughout American history, methods of silencing pro-equality speech have morphed over time and survive in many forms. A long tradition thus connects racial oppression and speech suppression.

As such, suppression of anti-sacrifice zone speech should be considered a ““badge and incident of slavery” violative of the Thirteenth Amendment to the U.S. Constitution. In 1865, the Thirteenth Amendment formally abolished slavery in the United States. Later, in the Civil Rights Cases , the Supreme Court held that the Thirteenth Amendment also bequeathed to Congress the power to legislate against the “badges and incidents” of slavery. Since 1865, when *218 Congress passed the Thirteenth Amendment and the states ratified it, jurisprudence around this Reconstruction Amendment has evolved. For example, it has expanded to empower Congress to legislate against racially motivated violence and racially restrictive covenants as “badges and incidents.” Speech suppression efforts also fall under this “badges and incidents” category because, throughout American history, federal and state governments--as well as private actors--have endeavored to stifle, punish, and criminalize the voices of Black people advocating for freedom and equality.

As sacrifice zones themselves often function as a legacy of slavery, suppressing dissent against them should be considered part of the ““afterlife of slavery.” Therefore, not only does Congress have the power to legislate against this speech suppression as a “badge and incident” of slavery, but, perhaps more importantly, private litigants also have the right to sue under *219 the Thirteenth Amendment to stop or at least limit speech suppression. This solution places power in the hands of people directly impacted by speech suppression laws by permitting them to bring enforcement actions rather than waiting on Congress to legislate.

In a post- Students for Fair Admissions landscape where the Supreme Court of the United States has called into question race-based claims and the Fourteenth Amendment’s efficacy in blunting the legacies of slavery, the Thirteenth Amendment holds important promise. To borrow a phrase from Kenji Yoshino, “[s]queezing law is often like squeezing a balloon.” That is, when the courts shut down one area of doctrine, the commitments expressed there often shift into another area of doctrine, rather than squeezing out of constitutional jurisprudence altogether. As Fourteenth Amendment-based opportunities to address racial harms shrink, Thirteenth Amendment-based opportunities are expanding.

Thirteenth Amendment arguments can attack the legacies of slavery, including suppression of racial justice advocacy, and protect Black and non-Black speakers resisting racial inequality. As an additional benefit, the Thirteenth Amendment--unlike the Fourteenth Amendment--can address actions taken by private actors, rather than only state actors. The Supreme Court may even be more open to Thirteenth Amendment claims than to Fourteenth Amendment claims. Indeed, during oral argument in Students for Fair Admissions --which struck down Harvard University’s and the University of North Carolina’s *220 affirmative action programs as Fourteenth Amendment violations--Justice Brett Kavanaugh delineated between using impermissible race-based categorizations versus status of (former) enslavement . He then suggested that “a benefit to descendants of” enslaved people would not arise to an unconstitutional “race-based” effort, unlike the affirmative action programs at issue. Of course, practically, the institution of slavery depended upon a “racialized caste system ... centrally tied to race.” Given, however, the Court’s hostility to addressing race -based harms against people of color--but a corresponding openness to approving “benefit[s]” based on the effects of enslavement --attacking racialized speech suppression efforts as a Thirteenth Amendment badge and incident of slavery may prove a more viable legal tactic than a Fourteenth Amendment racial discrimination claim.

Academics have previously examined how the Reconstruction period informs First Amendment interpretations and have discussed the long history of racist censorship efforts. They have argued for expanding the Thirteenth Amendment to regulate new contexts such as gang statutes, limitations on labor organizing, retaliation against pro-equality speakers in the workplace, and more. Mainstream legal academia, however, has yet to draw a direct connection between the Thirteenth Amendment and what this Note calls “sacrifice zone speech suppression” (including “sacrifice zone speech laws”), a subset of anti-protest efforts and laws aimed at silencing dissent in sacrifice zones specifically.

This Note aims to fill that gap. It does so by providing two solutions under the Thirteenth Amendment. First and foremost, this Note offers as its main prescription a litigation pathway: Under Section 1 of the Thirteenth Amendment, private litigants can challenge sacrifice zone speech *221 suppression as a badge, incident, or relic of slavery, even in the absence of congressional legislation. Second, this Note offers a legislative fix: Under Section 2 of the Thirteenth Amendment, Congress can legislate against sacrifice zone speech suppression as a badge, incident, or relic of slavery.

The Note proceeds in four parts. Part I surveys Thirteenth Amendment jurisprudence. Part II traces the relationship between current speech suppression efforts and their forebears--specifically, speech suppression efforts aimed at Black communities and abolitionists before and after the Civil War. Part II thus excavates a historical link between the silencing of abolitionists and the silencing of racial justice activists today. Part III then describes the phenomenon of sacrifice zones, examples of community pushback against their proliferation, and current efforts to squash opposition to this dissent. Part IV explicates why existing First Amendment and Fourteenth Amendment doctrines do not adequately protect against this encroachment on speech--in large part because neither Amendment reaches private conduct and because neither sufficiently guards against discriminatory impact on pro-racial justice speech or speakers. These shortcomings in the existing doctrine make a new solution paramount. Finally, Part V concludes by arguing that the Thirteenth Amendment can serve as this new solution by barring sacrifice zone speech suppression--including recent anti-protest laws, private silencing efforts, and related endeavors to suppress speech.

[ . . . ]

“ Justice is possible. ”

--Bill Quigley, 2025

As Roger Baldwin once said, “Silence never won rights .... They are not handed down from above--they are forced by pressures from *271 below.” This Note has explored the long history of speech suppression as a legacy of the American institution of slavery. Using sacrifice zone speech as an example, it has argued that racial-justice-oriented speech--which dissents against the modern-day afterlives of slavery--deserves robust protection under the Thirteenth Amendment.

This Note has suggested two prescriptions. First, this Note offers as its primary prescription a litigation option: Courts should adopt a more expansive approach to Section 1 of the Thirteenth Amendment, thus opening the door for private litigants to sue directly under the Thirteenth Amendment and challenge sacrifice zone speech suppression as a badge and incident of slavery. This route allows people with lived experience to assert what constitutes a badge or incident of slavery, rather than putting this power solely in the hands of a more removed Congress. Second, Congress can and should legislate against sacrifice zone speech suppression as a badge and incident of slavery under the Thirteenth Amendment. This prescription, though, which follows the more democratic route of securing rights expansion, may not be politically viable anytime soon.

Both prescriptions derive from a historical understanding of speech suppression as tied to slavery and its afterlife. As governmental and private methods of silencing advocates evolve to meet the times, speech suppression in sacrifice zones--from Standing Rock to the swamp--persists as a pressing problem requiring a remedy. The Thirteenth Amendment could provide the solution. By so arguing, this Note pays homage to the many advocates who have spent years, decades, and centuries fighting for an end to the legacies of slavery. In seeking another way forward, this Note shares those activists’ hope and conviction that “justice is possible.”