Abstract

Excerpted From: Brian L. Owsley, Protesting While Black, 15 Alabama Civil Rights & Civil Liberties Law Review 1 (2023-2024) (327 Footnotes) (Full Document Requested)

In May 2020, Officer Derek Chauvin murdered George Floyd in Minneapolis by kneeling on him for over nine minutes, causing him to asphyxiate. In response to Floyd's death, protests sprang up across the United States and the world during the summer of 2020. Black Lives Matter (BLM) led many of these protests promoting equal justice for African Americans and other victims of police brutality.

Additionally, such protests raised concerns about the violent death of Breonna Taylor in Louisville, Kentucky. She died when police, who were seeking her ex-boyfriend, served a no-knock warrant at her home at night while she slept. There were also protests over the murder of Ahmaud Arbery after three white men accosted and shot him while he was jogging in his neighborhood near Brunswick, Georgia. In recent years, law enforcement has targeted Black Lives Matter and other new social justice and civil rights organizations.

Indeed, recent events demonstrate that the issue of police brutality targeting people of color is not going away. On average, in the United States, police officers kill about three persons a day or almost one hundred persons per month. In 2021, police officers killed 1,145 people the first full year after George Floyd's death, and that number increased to 1,176 in 2022. Although African Americans comprised only 13% of the American population, in 2022, they constituted 26% of the people killed by police. Thus, while the killing of Tyre Nichols by an officer with the Memphis Police Department is the high profile recent police killing, it is just one of many in 2023. As with George Floyd's murder, Tyre Nichols's killing sparked nationwide protests.

In response to these protests highlighting racism and the need for social reforms following the killings of George Floyd and Breonna Taylor, Republican-controlled legislatures enacted a wide range of statutes designed to limit or adversely impact protects by Black Lives Matter and its allies. These new laws targeting protesters include ones that make it easier for drivers who run over protesters to avoid any legal consequences.

These statutes raise constitutional concerns, including potential violations of protesters' First Amendment rights to freedom of expression, freedom of assembly, and freedom of association. In the Bill of Rights, the Framers included the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Even before the world heard of George Floyd or Tyre Nichols, American history overflowed with examples of African Americans fighting for basic civil rights and a hostile response against this struggle. In response to the abolitionist movement's calls to end slavery, Congress enacted the Missouri Compromise Act. In 1857, the Supreme Court struck down the Missouri Compromise in the infamous decision Dred Scott v. Sandford.

The nation became embroiled in the Civil War based, in part, on the response to Dred Scott and the continued battle over slavery. After the Union won the Civil War, Congress instituted a period of Reconstruction designed to rehabilitate the former confederate states, which led to the Reconstruction Amendments. In 1866, the nation adopted the Thirteenth Amendment, which outlawed slavery. In 1868, the nation adopted the Fourteenth Amendment, which, among other rights, guaranteed equal protection for all. Finally, in 1870, the nation adopted the Fifteenth Amendment, which provided all men, including African Americans, the right to vote.

Notwithstanding the defeat in the Civil War and the Reconstruction Era, Southern states implemented Jim Crow laws that sought to deprive African Americans of their newly guaranteed civil rights. In 1883, the Supreme Court rejected the position that either the Thirteenth Amendment or the Fourteenth Amendment protected African Americans from racial discrimination perpetrated by private persons. In 1896, the Supreme Court enshrined Jim Crow with its decision in Plessy v. Ferguson. In response to this decision, the National Association for the Advancement of Colored People (NAACP), its attorneys, and numerous others attacked the “separate but equal” doctrine, culminating in Brown v. Board of Education.

The year after the Brown decision, the Supreme Court issued another decision indicating that the states must implement Brown “with all deliberate speed” and end discriminatory admission in public schools. In the years that followed, the civil rights struggle continued with boycotts, sit-ins, and protests seeking to secure the promise of Brown throughout the nation. Specifically, people demonstrated in states across the South. In Virginia, African Americans demonstrated peacefully despite being attacked by police with night sticks and fire hoses. In Georgia, the Fifth Circuit determined that African Americans have a First Amendment right to march peacefully to city hall to protest civil rights violations.

In Alabama, Eugene “Bull” Connor, the Birmingham Public Safety Commissioner, unleashed a reign of terror on African Americans protesting segregation. In 1961, he arrested Freedom Riders coming through Birmingham. In 1962, he threatened to close stores when downtown shopkeepers took down signs promoting segregation in response to a boycott. In 1963, he used police dogs and fire hoses to attack African Americans, including children, who were protesting racial discrimination.

Considering this history of racial injustice, this article seeks to address the recent laws that target First Amendment rights exercised by African Americans. In Section I, the article discusses protests over the death of George Floyd as well as the injuries and deaths to non-violent protesters. Section II outlines various legislation that some states enacted after that summer of protests. Section III highlights a new Alabama law focusing on one county in Alabama that had a history of protests both before and after George Floyd's death. Next, Section IV addresses First Amendment jurisprudence regarding freedom of expression, freedom of association, and freedom of assembly. Section V applies this jurisprudence to the new legislation targeting African Americans' right to protest.

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As Button explained, the Supreme Court cannot ignore “the fact that the militant Negro civil rights movement has engendered the intense resentment and opposition of the politically dominant white community.” These words sound like the Court could write them today regarding the statutes concerning the Black Lives Matter movement and the George Floyd protests. Moreover, governments cannot craft legislation that is “an effort to suppress expression merely because public officials oppose the speaker's view.” The First Amendment and its array of freedoms have “a preferred position” within American society.

African Americans' peaceful, lawful protests against injustice may cause discomfort among some in society. Nonetheless, the Supreme Court recognized that such speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” With the deaths of well over two thousand people since Derek Chauvin murdered George Floyd, this issue is not going away soon. Indeed, Tyre Nichols's recent killing and the subsequent protests demonstrate the need not only for protests but also for First Amendment protections for protesters.

People involved in the Black Lives Matter movement and those protesting the death of George Floyd and others at the hands of law enforcement are seeking to promote change. “Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change. Through speech, assembly, and petition--rather than through riot or revolution--petitioners sought to change a social order that had consistently treated them as second-class citizens.” Unfortunately, some of the fervor for protesting those injustices may be waning, even though police killings of African Americans are not.

People interested in promoting social justice do not have the luxury of forgetting. As in the past, when the NAACP filed lawsuits around the country to protect African Americans' First Amendment rights, national organizations like Black Lives Matter and local organizations like Project Say Something must lead the charge today. Aggressive civil rights litigation is necessary to safeguard these rights.

Associate Professor of Law, University of North Texas Dallas College of Law; B.A., University of Notre Dame; J.D., Columbia University School of Law; M.I.A., Columbia University School of International and Public Affairs.