Winter ‘18: The First Amendment
Our Moment in History: Protesting and Censorship by Elizabeth Bonham Prior to World War II, the U.S. Supreme Court provided few protections for protestors. It was the norm in our nation’s history to criminalize antiwar activists, socialists and other political dissenters for what should have been constitutionally-protected speech.1 This is the nation where the American Civil Liberties Union was founded (in 1920): political dissenters were routinely persecuted, and law on the rights of speech and assembly did not catch up for decades. During the Civil Rights Movement of the 1960s, Black activists and their allies marched to demand that the federal government actualize the freedoms that the Civil Rights Amendments promised. White anxiety about losing racial dominance foamed and exploded, in churches and at hardware stores. In the summer of 1964, Clarence Brandenburg walked into the Cincinnati streets with hooded Klansmen, burning crosses and carrying weapons, and pledged that his group would take “revengence” against the federal government’s “suppression” of the “Caucasian race.” His message was one of genocide premised on racial superiority. After his arrest, under Ohio’s criminal
syndicalism statute, the Court held that the State may not criminalize speech – even speech that advocates violence including racial terror – unless it intends to and is likely to imminently incite such violence.2 This is a high standard. It means the State may almost never censor speech based on its content. As the ACLU commonly proclaims, First Amendment doctrine now protects speech whether we like it or not. During the same period in our history, the Court developed a parallel speechdeferential jurisprudence for the right to assemble, largely in the context of civil rights activism. In 1963, the Court held the State could not disperse a peaceful group of Black student civil rights demonstrators marching to their state’s capital;3 in 1965, the Court found that a breach-of-the-peace statute was unconstitutional after civil rights demonstrators were arrested for singing hymns outside of a segregated restaurant;4 and in 1966, a plurality of the Court found that the First Amendment protected Black activists conducting a
peaceful sit-in at a public library in protest of its lending practices.5 As a legacy of these protests, the United States ended up with a robust First Amendment doctrine and a political culture that venerates free speech and expression. But the world has changed. Our protests look different than the protests of the 1960s. Since 2001, the federal government’s narrative of protectionism from global terror has caused executive branch authority to balloon. Local police have acquired sophisticated surveillance technology, from license plate scanners to celltower replicators that can pinpoint an individual’s location based on their cell phone’s signal. Military equipment has also been absorbed into the daily operations of local police, who lack the training to use it. This includes technology like the Long Range Acoustic Device (LRAD), a dispersal tool that projects loud, high-frequency soundwaves capable of causing
As the ACLU commonly proclaims, First Amendment doctrine now protects speech whether we like it or not.
30 | Columbus Bar L aw yers Quarterly Winter 2018