Excerpted From: Nina Farnia, Imperialism and Black Dissent, 75 Stanford Law Review 397 (February 2023) (412 Footnotes) (Full Document)


NinaFarnia“One who reads this record will have, I think, the abiding conviction that these people were denied a permit solely because their skin was not of the right color and their cause was not popular,” proclaimed Justice Douglas in his scathing dissent in Walker v. City of Birmingham. In Walker, the Court found in favor of the City of Birmingham after Commissioner Eugene “Bull” Connor refused to give the Southern Christian Leadership Conference a permit to protest segregation laws on Easter weekend 1963. Connor was an avid segregationist, best known for ordering attacks on Black children with police dogs and fire hoses during the Children's Crusade marches to protest racial apartheid in Birmingham on May 3, 1963. On the day before the attacks, he had ordered the arrests of 900 Black children in what would later be remembered as one of the most violent episodes of the Civil Rights Movement.

Walker v. City of Birmingham is often treated as a historical outlier in civil rights and civil liberties jurisprudence. According to the prevailing logic, the Warren Court largely protected the First Amendment rights to freedom of speech and association in order to promote racial equality and advance what legal scholars have called a “constitutional revolution.” Of course, Chief Justice Warren's enthusiastic support of Japanese internment during his tenure as California Attorney General belies this narrative of constitutional veneration.

Such normalized treatment of the First Amendment warrants reexamination. In this Article, I contend that Black Americans have historically had uneven access to the right to freedom of speech. I conduct four case studies that are representative of key trends in Black dissent after World War II: Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives. Through archival research and legal analysis, I illustrate how U.S. imperialism has shaped both the First Amendment right to freedom of speech and the national security state, narrowing the contours of Black dissent in the United States.

The dynamic relationship between state suppression of both Communist dissent and Black dissent has shaped the modern First Amendment in significant ways. While the state completely suppressed Communist dissent, it could not do the same with Black dissent, for then the world's nonwhite peoples, the great majority of the global population, would view the United States as a disingenuous critic of the Soviet Union. Rather, the state sought to discipline Black dissent, offering concessions on issues pertaining to segregation and voting rights while delimiting the economic-justice impulses that animated much of Black radical activism.

Such concessions led to significant shifts in constitutional jurisprudence. This Article tracks those shifts with regard to the First Amendment right to freedom of speech, which came to be a key force in the management of Black dissent during and after the Cold War. The case studies in this Article, when analyzed alongside one another, expose how the First Amendment facilitated the deportation of Black Communists and the bifurcation of the Civil Rights Movement from Communism in the early years of the Cold War. This bifurcation disturbed the ideological synergy between the two movements and led to the simultaneous deradicalization of the Civil Rights Movement and marginalization of U.S. Communism. After the rise of the Civil Rights Movement and Black Power, the First Amendment then failed to protect the legitimate speech of those movements against the onslaught of the FBI and local police.

But the First Amendment does not function in a historical or political vacuum. As the modern national security state evolved in response to U.S. imperialism and the rise of Communism, it too came to be a major force in the suppression of Black dissent, disciplining and undermining freedom of speech. I contend that the rise of U.S. imperialism and the modern national security ideology during World War II are key factors shaping Black dissenters' access to freedom of speech today. Black rebellion and dissent have been treated as matters of domestic security in the United States since the founding of the nation. In fact, the federal government was suppressing the activism of Black radicals as early as World War I. According to Theodore Kornweibel, Jr., federal agents were monitoring Black radicals during the early twentieth century purely because of their speech and activism. In 1919, Attorney General A. Mitchell Palmer “submitted to the Senate a lengthy report on the Investigation Activities of the Department of Justice,” warning that “[p]ractically all of the radical organizations in this country have looked upon the Negroes as particularly fertile ground for the spreading of their doctrines .... [T]he Negro is ‘seeing red.”’ Notably, the modern political intelligence system took shape during this period and into World War II and, by the Cold War, had become a permanent establishment. Policy shifts proposed by Cold War-era strategists like Ambassador George F. Kennan, Secretary of State Dean Acheson, and FBI Director J. Edgar Hoover led to a complete restructuring of the national security apparatus, which further enabled the repression of Black dissent and has come to impact domestic security policy as well. Because domestic security in the United States necessarily involves the management and suppression of racialized rebellion and radical dissent, national security ideology and the First Amendment cannot be decoupled from one another.

The rise of the modern national security state is coterminous with the global expansion of U.S. imperialism following World War II. During this era, three political developments shaped the ascendance of U.S. imperialism: the spread of Communism throughout the world, the rise of anticolonialism in the “Third World,” and the intensification of domestic racial and anticolonial rebellions. As the United States sought to defeat Communism globally, gain economic and political ground in the decolonizing world, and suppress domestic rebellions, it needed a unified political and military apparatus that could execute projects swiftly and decisively through intense collaboration and resource sharing.

I define the modern national security state as a bureaucratic, legal, and military apparatus that organizes the state's resources behind a permanent program of peacetime military preparedness. What makes the national security state distinct from the state at war is that the national security state can operate at its peak both in peacetime and wartime. To that end, it marshals civilian and military resources to strengthen peacetime military preparedness and unify it with systems of power and repression commonly used in wartime. In the U.S. context, the national security state relies on racialized ideological notions that mark nonwhite peoples as permanent potential threats, thereby justifying the exercise of racial power through partnerships across federal, state, and local law-enforcement agencies--and with foreign governments as well.

Ultimately, I argue that, as the national security state took shape during the Cold War, the First Amendment came to be structured by anticommunism, white supremacy, and U.S. imperialism--impacting a wide range of dissenters, from Communists and civil rights activists to those involved with the contemporary Movement for Black Lives. The case studies below suggest that government repression operates in conjunction with free-speech colorblindness, a phenomenon I track in the final Part of the Article, to narrow the speech rights of Black dissenters and ultimately contain Black dissent. In essence, the modern national security state is one of the power structures undergirding the First Amendment.

Collaboration across various law-enforcement agencies plays a key role in the suppression of domestic dissent. During the early stages of the Cold War and the Civil Rights Movement, both local and federal law-enforcement agencies were engaged in suppressing Black dissent. By the rise of the Black Power movement and the formal creation of the FBI's Counterintelligence Program, local and federal agencies had developed avenues of collaboration that became increasingly institutionalized. Once the Joint Terrorism Task Force was established in the 1980s, interagency collaboration came to be a mainstay in the domestic antiterrorism apparatus, as indicated by the Biden Administration's National Strategy for Countering Domestic Terrorism, announced in June 2021. Notably, in each era, law-enforcement agencies characterized Black dissent as extremist or marginal. This characterization was applied to each of the Black activist movements I evaluate, despite their different ideological tendencies and varying intensities in protest tactics.

Recently, several scholars have written about the relationship between Black dissent and the First Amendment--developing the previous ideas of renowned critical race theory scholar Derrick Bell, who argued that “the courts are as likely to decline as to provide relief when blacks involved in protest activity seek judicial protection from white retaliation.” In Back to the Future: Recentering the Political Outsider, Cheryl Harris complicates the prevailing view that the Supreme Court was more responsive to the NAACP's First Amendment claims than to those of the Communist Party, thereby challenging the implicit narrative of bifurcation between Black dissent and Communist dissent, since many Black people were Communists and many Communists were Black. In The First Amendment Freedom of Assembly as a Racial Project, Justin Hansford argues that the First Amendment is “a racial project that redistributes the freedom of assembly to whites and away from Blacks,” and likely other racial groups as well. Hansford shows how law enforcement continues to undermine the rights of Black dissenters both in the streets and through surveillance. In Blackness as Fighting Words, Etienne Toussaint argues that the First Amendment's treatment of Blackness reflects the unresolved racial tensions contained within First Amendment jurisprudence:

Black identity itself, or “Blackness”--whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square--has become “‘fighting’ words” in the consciousness of America, a type of public speech unprotected by the Constitution.

This Article builds on the contributions made by Bell, Harris, Hansford, and Toussaint by conducting a legal history of key Black dissenters and the mechanisms through which the state repressed their political speech. My focus is specifically on how the rise of U.S. imperialism and the national security state affected the First Amendment and Black dissent. Through archival and legal research, I evaluate the modern history of Black dissent to expose how U.S. imperialism and the national security state have shaped the parameters of the First Amendment right to freedom of speech for Black dissenters, a matter that imbricates the speech rights of all dissenters.

Much is at stake with respect to the historical terrain that I cover. In addition to taking the concerns and proposals of Black people seriously and seeking to end white supremacy and racial capitalism, especially following the massive global uprisings of summer 2020, I dispute the ideas that the First Amendment categorically protects speech and that, more often than not, we can rely on its tenets to safeguard the rights of dissenters. My research reveals that U.S. imperialism has narrowed the First Amendment right to freedom of speech to suppress domestic dissent by subordinated racial groups, particularly anti-imperialist and anticapitalist dissent.

In essence, this Article is a legal history that unveils the violent past of the modern First Amendment. I advance three claims. In Part I, I track the rise of the national security state alongside state and federal laws targeting Communist political activity. In Part II, I focus on prosecutions and investigations of Black dissenters, revealing that, although the language of race is absent from much of First Amendment jurisprudence, white supremacy, capitalism, and imperialism are significant forces shaping Black dissenters' access to free-speech rights. In Part III, I excavate the doctrinal mechanisms through which racial power recedes from view in the colorblind First Amendment, a process that creates a multitude of absences and silences in legal scholarship. This Article relies on archival research conducted at the Schomburg Center for Research in Black Culture, the Harry S. Truman Presidential Library, and the FBI's online Freedom of Information Act Library, called the Vault.

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Those who are racially marginalized are like the miner's canary: their distress is the first sign of a danger that threatens us all. --Lani Guinier & Gerald Torres

Modern American society faces a significant increase in racial violence, and the right-wing Capitol insurrection of January 6, 2021, is a harbinger of growing social instability. Both the violence and the riots were a symptom of the problems facing the United States. In short, there is a rising tide of white-supremacist violence and instability facing the nation. The law should be the product of society's goals, rather than a glass ceiling hindering society's progress. While the law cannot bring about immediate change, it should function to create the conditions for open engagement and change over the long term. A racially conscious First Amendment has the potential to protect the speech of Black dissenters and other subordinated peoples who seek to make the United States a more equitable and just nation.

Despite the violent weight of state repression and the geographic power of U.S. imperialism, Black anticapitalist and anti-imperialist dissent has persisted for centuries. Black people continue to demand collective liberation from the racial and economic injustices imposed on them by the mutually constitutive forces of white supremacy and capitalism. And while they do so from within different political formations, through different ideological orientations, and with different tactics, their demands have remained largely consistent over time.

There are many histories of this resistance left to tell. In writing this Article, I have sought to open up new avenues of inquiry into our study of the First Amendment, and into our study of Black history and Black dissent. But my objective, ultimately, is not just to interpret the law and the history that made it. Rather, my aim is to transform it.

Assistant Professor of Law, Albany Law School; A.B., University of Chicago, 2002; J.D., UCLA School of Law, 2009, specialization in Critical Race Studies; Ph.D., University of California, Davis, 2022.