Excerpted From: Katrina McCullough, Speak Now or Forever Hold Your Peace: Freedom of Speech under the First Amendment Addressing the Government's Suppression of African Americans' Right to Peaceful Protesting, 15 Southern Journal of Policy and Justice 79 (Summer, 2022) (82 Footnotes) (Full Document Requested)


KatrinaMcCulloughThis paper will examine the history, development, and principles of Freedom of Speech expressed in the First Amendment. Additionally, this article will analyze different eras, problems, responses, and lingering effects in which African Americans' freedom of speech under the First Amendment to peaceful protesting was suppressed by the government. Part I of this paper will discuss the origins of suppression of African Americans' freedom during slavery., Part II will focus on the Jim Crow Era, the Civil Rights Movement, and pivotal moments during this era that attacked African Americans' freedom of speech., Part III will discuss police brutality against Blacks and their responses in expressing their freedom of speech through self-defense tactics against white violence, court battles, rap, and hip-hop lyrics., Part IV will explore the current situation African Americans are facing while expressing their freedom of speech through the Black Lives Matter movement and Antifa, an anti-fascist group; and contemplate how the Ku Klux Klan (Proud Boys) has been praised while African Americans are being dismantled and labeled as a threat to the government for exercising their rights of freedom of speech and their right to peaceful protesting.

I. The Correlation Between the History of the Constitution and the Suppression of African Americans

The First Amendment of the Constitution protects the right to freedom of speech, religion, assembly, and association. The first ten amendments, known as the Bill of Rights, were ratified by two-fourths of the States on December 15, 1791. George Mason and James Madison were the driving force behind the drafting and maneuvering the Bill of Rights through Congress. Madison's intention was to provide more guidance for the states to have a Bill of Rights to abide by. Still, there were ten states that did not have protection of freedom of speech. Madison also wanted to protect individual liberties. Thus, the first ten amendments were ratified by the States. However, the Bill of Rights only applied to the federal government, not the states. For example, the Supreme Court held in Barron v. Baltimore the Bill of Rights did not apply to the States. The Bill of Rights applied to wealthy white men, not African Americans nor women.

The Bill of Rights was written for white men in power - the slave owners. The Bill of Rights did not protect African Americans because they were classified as property, not citizens. In Dred Scott v. Sanford, the Court held that it was constitutional to hold slaves in all territories; a right that Dred Scott exercised that Congress lacked the power to enforce. Slavery became a political issue and many whites feared after Dred Scott v. Sanford, slaves would become naturalized in territories and free states. This was one of many ways the government wanted to suppress freedom of speech and ensure slaves were not able to bring a case in federal court. For example, in 1860 Senator Charles Sumner said, “denial of rights to the slave can be sustained only by disregard of other rights, common to the whole community, whether of person, of the press, or of speech ... [S]ince slavery is endangered by liberty in any form, therefore all liberty must be restrained.” This later led to the Civil War from 1861-1865 between the northern states and the southern states who were in favor of slavery. At this point, it became clear that white Republicans wanted to suppress African Americans from bringing antislavery issues/topics to the forefront.

Years later after the Civil War ended, the Union victory over the Confederate states introduced the Thirteenth Amendment. It was passed by Congress on January 31, 1865 and ratified on December 6, 1865. The Thirteenth Amendment abolished slavery in the United States and provided that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The Fourteenth Amendment states, “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. In 1868, both the Thirteenth, and more particularly the Fourteenth amendment in later decisions, overturned the Court's ruling in Dred Scott v. Sandford. Finally, the third and last of the Reconstruction Era amendments was passed. The Fifteenth Amendment, “prohibits the federal government and each state from denying a citizen the right to vote based on that citizens race, color, or previous condition of servitude.” The many amendments that were adopted to the Constitution was of great importance for African Americans slaves. It meant progress for them to be granted equal rights. Wrong!

Slavery was abolished by the Thirteenth Amendment. The Reconstruction Era gave African Americans more rights than ever before; but racism persisted in the United States after the end of the Reconstruction Era. One day African Americans are property, and next the judicial system helped draft former slave states' constitutions. Further, after the Reconstruction Era, the white supremacy system that had maintained slavery reformulated it in order to terrorize Blacks and strip them of as many rights as possible. Blacks were lynched, segregated, discriminated against, disfranchised, and forced into peonage. Although the 13 14 and 15 amendments were passed, Blacks continued to be treated unfairly through state and local laws which were proponents of racial segregation in the South.

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The lack of education and power Black slaves had only led them to complying because they were afraid of death, which looks very familiar in our society today. The government enacted the First, Thirteenth, Fourteenth, and Fifteenth Amendments to protect the rights of all people and added Amendment specifically for Blacks. However, there were still laws enacted by states to continue the suppression of Blacks' speech, such as the Black Code and the Jim Crow Laws. The Civil Rights Movement gave Blacks the opportunity to bring change to ensure the government saw they were protesting for desegregation. But the First Amendment does not protect Blacks free speech like whites.

For example, there are two popular sayings, “If words could kill” and “Actions speak louder than words.” The Black Panthers, NAACP, Black rappers, and hip-hop artists; lyrics responded to unequal treatment and police brutality through words and actions according to their constitutional rights. The Black Panther Party was destroyed by the government years ago; however, the KKK (Proud Boys) still stands. Those in blue uniforms have the obligation to protect all people; instead, they overtly use their power and kill innocent Blacks. The Black Lives Matter Movement upraised a new era of spreading awareness across the nation to promote civil rights reform. This leads to the recommendation to make it a federal law to enforce peaceful protesting training to police officers on a yearly basis.

In sum, the First Amendment is a powerful constitutional right. Although it is not absolute, it does not totally protect the government's suppression of African Americans' freedom of speech through their hidden agendas. If nothing is done about the racial injustice, white Americans will believe in dividing our country between red and blue states. Like on January 6 2020, the former President of the United States Donald Trump called the people who violently attacked and briefly seized the U.S. Capitol building to overturn a Presidential election “patriot” and not “terrorists.” In contrast, Trump activated the National Guard on Black Lives Matter protesters without mercy and called them rioters. Being African American and exercising one's free speech means being a threat, while the government's response to white protestors is nowhere near the scrutiny African Americans face. Lastly, Freedom of Speech under the First Amendment of the Constitution should be applied equally, not racially applied.