Black Speech Matters
Jennifer Kinsley · SSRN Electronic Journal · 2021
On Memorial Day 2020, Minneapolis police killed George Floyd, an unarmed African-American man suspected of paying for groceries with a counterfeit $20 bill. Two officers held Floyd face down on the ground, while another officer pinned Floyd’s head against the ground by forcefully placing a knee onto his neck for nearly ten minutes. Several months earlier, Louisville police shot and killed Breonna Taylor—an unarmed African-American woman and an EMT—in her home during the overnight execution of a no-knock search warrant. Around the same time, prosecutors and police in south Georgia conspired to allow three white men who trapped and killed Ahmaud Arbery—another unarmed African-American man—to go uncharged. These three killings brought racism—specifically racist policing—to the forefront of the American consciousness. The events of the summer of 2020 have only intensified this discourse. For instance, video of George Floyd’s death taken by bystanders sparked revelations of the use of similarly dangerous arrest tactics utilized by police officers elsewhere. Subsequently, recordings surfaced of other individuals previously killed by police in similar situations. Names like Elijah McClain, who died after being held in a chokehold and injected with the powerful sedative ketamine, and Daniel Prude, who died after police placed a bag over his head and pinned him to the ground, became part of the common parlance. Nonetheless, police shootings of unarmed black men continued, even in the wake of mounting calls by activists to reduce police department funding and to terminate those responsible for racist practices. For example, Jacob Blake was shot seven times in the back by a Kenosha, Wisconsin police officer as Blake was entering a vehicle occupied by his three young children. Remarkably, Blake survived, but is reportedly paralyzed. In the case of Deon Kay, Washington, D.C. police fatally shot him as he was running away and after he had dropped a gun on the ground. In the case of Treyford Pellerin, police fatally shot him eleven times in the back as he walked to the entrance of a convenience store. In the wake of these shootings, peaceful protests arose nationwide, calling attention to the problem of police murdering innocent black people. During the summer of 2020, virtually every city in America became a host to protests of varying size and duration, speaking out against racist police tactics and in favor of black liberation. Some of these protests included, invited, or became intertwined with acts of violence and property damage. As a result, almost immediately public officials at all levels of government began associating the Black Lives Matter protests with vandalism and crime in their rhetoric. In addition, government agencies employed a variety of techniques intended to suppress messages denouncing racist police practices. These tactics ranged from measures designed to criminalize protests—like curfews banning gatherings at certain times and in certain areas —to responses that, in essence, punished and deterred peaceful expression with the use of tear gas, rubber bullets, and other weaponized projectiles. The state of Tennessee even made it a felony to camp on public property for free speech purposes after Black Lives Matter protestors gathered at all hours of the day and night on the statehouse grounds. A close examination of governmental responses to the summer 2020 Black Lives Matter protests reveals significant observations about current First Amendment jurisprudence and its inability to fully address the constitutionality of speech regulations that intersect with race. First, governmental regulation of Black Lives Matter protests exposes a faulty dichotomy in the First Amendment tests that apply to content-motivated time, place, and manner restrictions on speech. Often it is the case that when the government restricts protests in support of black liberation, it does so based on its assertion that curtailing speech is necessary to prevent or apprehend crime. Governments frequently assert either a compelling government interest—in the case of content-based restrictions—or a substantial government interest—in the case of time, place, and manner regimes—in promoting public safety and preventing the vandalism and violence it associates with the Black Lives Matter movement. Goverments also argue they cannot effectively identify and apprehend the individuals responsible for such violence when peaceful protestors are in the way. This argument, in essence, places speech and safety in direct opposition to one another and relegates speech to a lesser role than the preservation of public order. However, as this Article will discuss, this conclusion turns the First Amendment on its head, a particularly problematic outcome given the fundamental nature of the right of free speech. The Constitution affords speech greater protection in its hierarchy of values than it credits the need to solve crime, and municipalities harm the normative significance of the First Amendment when they view it as a distraction to police functions. What is worse, current governmental attempts to suppress speech by and in support of the Black Lives Matter movement also illustrate a significant gap in First Amendment jurisprudence. More specifically, existing free speech jurisprudence fails to explicitly account for governmental regulations of expression that are not on their face content-based, but are content-motivated by a prohibited racial animus. Under the Fourteenth Amendment’s Equal Protection clause, governmental actions are unconstitutional when they are motivated by invidious racial intent and impose racially disparate outcomes. However, under the First Amendment, the government’s motivation in adopting a speech restriction is not necessarily relevant so long as the restriction on its face does not categorize speech based on its content. As a result, the government can engage in censorship of speech based on disagreement with messages of racial equality or its misguided association of black speech with crime, so long as it does so in a content-neutral way. This outcome exposes an innate tension between the First and Fourteenth Amendments that courts should reconcile. This Article explores that tension in three parts. Part I of this Article discusses the origins of the Black Lives Matter movement and its reliance upon activities—such as rallies, marches, protests, and social media posts—that are protected by the First Amendment. Part II discusses the events of the summer of 2020 and the various ways in which governmental agencies have punished, silenced, and chilled speech related to the Black Lives Matter movement. Using cities like Portland, Columbus, and Cincinnati as well as the State of Tennessee as examples, this section of the Article exposes the ways in which governmental regulation of the Black Lives Matter movement has been content-motivated and targeted to silence speech from, by, and about black people. In Part III, this Article explores the intersection of the First Amendment right of free speech and the Fourteenth Amendment’s prohibition on racial discrimination by the government. More specifically, Part III focuses on gaps in First Amendment jurisprudence in addressing regulations that are content-motivated, rather than content-based, and exposes the false assumptions leading municipalities to subjugate speech to the prevention of crime. This article reaches the conclusion that many of the speech-suppression techniques utilized by cities to silence—and, in some instances, criminalize—the Black Lives Matter movement depart in fundamental ways from the values the First Amendment is intended to serve. As a result, this Article argues that Fourteenth Amendment racial animus theory should be imported into First Amendment doctrine to prohibit governmental regulation of speech based on race when the restriction is content-motivated.