Sword or shield?

Thousands took to the streets in protests during the summer of 2020 in a massive expression of first amendment rights nationwide. Despite the surging COVID-19 pandemic, city-wide lockdowns, and being labeled ‘rioters’ by political opponents, the murder of George Floyd stirred the public to action — inspiring over 11,000 demonstrations in the name of social justice and antiracism.

“The Floyd death in particular led to international global anti-racist activism,” said Darren Hutchinson, professor of law at Emory University School of Law, and the keynote speaker at the 2022 Thrower Symposium held at the law school on February 4, 2022. “There aren’t that many moments [historians] can point to where you have this global movement, this flashpoint that was really bigger than Floyd… In many ways, this was about contesting antiracism, systemic racism, and the almost permanent status of people of color as second-class citizens.” 

Hutchinson’s scholarly work looks at the impact of law on a wide range of civil rights and social justice issues. For Sami Harrell 22L, symposium editor for the Emory Law Journal, it was important to acknowledge Hutchinson’s work as the inaugural John Lewis Chair for Civil Rights and Social Justice and its relevance to recent current events while noting Emory Law’s emphasis on civil rights law. “When researching for the symposium, many laws were coming out that sought to limit First Amendment rights,” she said. “We thought it was important to look at the ways the First Amendment gives voice to citizens.”

In his opening remarks, Hutchinson noted that the First Amendment and expression rights are often “neglected as a very important tool or resource for social justice movements,” instead overshadowed by reliance on equal protection and due process rights. And due to its importance, he said, he’s not surprised that the current countermovement against antiracism is directing its attention towards the First Amendment.

 “This is a moment of anti-antiracism,” said Hutchinson. His supporting evidence is lengthy and includes: President Trump’s use of protests against racial violence as an opportunity to rally his supporters to the polls; state legislation that would immunize people who drove vehicles into protests; new restrictions on voting; and — perhaps the most pervasive political buzzword of 2021 — bans on any instruction related to critical race theory, or CRT, in schools. “I was struck by the proliferation of that movement,” Hutchinson said, referring to CRT. “It happened quickly and went to a low level of politics like school boards” all around the nation. Looking more closely at these policies, like one he referenced in Florida, he explained that not only are teachers prevented from discussing critical race theory in schools, they’re also unable to instruct students in any way that indicates racism is systemic or caused by anything other than individual bias. “That has dramatic implications for speech rights,” he said. “The first amendment governs access to information, and I expect to see litigation on this, if we haven’t already.” Even in schools, he emphasized, children have the right to access information.

Today’s countermovement is becoming broader than just “codifying racial resentment,” Hutchinson said as he listed proposed bans on education that reference feminism, a bill in New Hampshire that requires teachers not advocate for communism or socialism, and a Tennessee school board’s recent ban on Maus, a book about the Holocaust. “It’s bigger than anti-antiracism; it’s really anti-anti-subordination,” he said.

The right to know

“What would be the use of giving to Americans freedom to speak if they had nothing worth saying to say?” Barry Sullivan, a professor of constitutional law and history at Loyola University, quoted philosopher Alexander Meikeljohn’s famous question to open the first panel of the Thrower Symposium and suggested that lacking information, speech loses its worth. Access to information, Sullivan said, “is one of the conditions necessary for the existence, and hopefully the flourishing, of a vibrant inclusive democratic society.”

While Sullivan referred to access to government information and the Freedom of Information Act, Aziz Z. Hug, professor of law at the University of Chicago, addressed information on social media. “In recent years, online platforms for speech, such as Facebook, Twitter, and YouTube, have been criticized for their systemic role in undermining democratic institutions and dispositions,” he began. However, Hug described this argument as “stuck between a rock and a hard place,” and asked, “If you distrust both the state and the market with respect to the democratic public forum, who exactly controls the space?” He explained, “The rock is a profound concern about state control of the public sphere. The hard place is a worry about concentrated private power being used to undermine democracy, using the speech tools that democracy makes available.”

“This is not a new debate.” Hug said. He suggested that instead, it mirrors a “long and lively debate” about militant democracy – the idea that democracies need to take liberal measures in response to the threat of fascism – and that our society can find its answers to questions of social media regulation in lessons learned here.

Later in the panel, Gerry Weber, an adjunct professor at Emory Law and senior staff council at the Southern Center for Human Rights, discussed the rights of private citizens to gather information by filming police activity. “Cameras have become kind of the eyes, the ears, and the truth tellers of what happens with law enforcement,” he said, and listed eight names: Philando Castile, Eric Garner, Oscar Grant, Tamir Rice, Walter Scott, Daunte Wright, Rashard Brooks, and Ahmaud Arbery — some of the Black males whose deaths by police shooting (or in the Arbery case, by three white men in Brunswick, Georgia) were captured on film, and subsequently led to “protests, prosecutions, lawsuits, and some- times — too rarely — to change.” Weber suggested that although circuit courts that have addressed this issue have uniformly held that there is a first amendment right to film in public places, there are hurdles remaining. For example, more protections are needed to prevent the arrest of people filming as a pretext and means of stopping the filming. Weber offered the city of Atlanta as an example, and explained, “Certain crimes, like being in the street [and] disorderly conduct, are not actionable under the city code if the primary purpose of the citizen was to engage in First Amendment rights.”

To close, panelists discussed questions regarding the impact of developing technology on the First Amendment and whether our social media platforms are any worse than the yellow journalism of the early 1900s. Moderator Matthew Lawrence, associate professor of law at Emory Law, restated these questions and asked, “Are we in a special moment, and are things changing in special ways, or have we been here before, and these are old songs?” He recalled the idea of repeated history from Hutchinson’s keynote. Paraphrasing General George C. Marshall, Sullivan ended with the observation, “You know, democracy demands the most of citizens of any form of government.”

The right to assemble

In a subsequent panel, Justin Hansford, who teaches law at Howard University and directs the school’s Thurgood Marshall Civil Rights Center, served as a legal observer during protests in Ferguson, Missouri, in 2014. One of five, he noted that he was “the only Black legal observer and the only legal observer arrested during that time” to begin his discussion of race and the freedom of assembly. Hansford described the unequal treatment of protestors as an “ongoing issue,” most recently brought to light when comparing the 2020 protests and the January 6, 2021, riots at the US Capitol. “Many people commented on the disparity in the response of police to those two assemblies,” he said. “It’s continued to raise this question of race when it comes to assembly.”

The freedom of assembly has always worked as a “racial project,” Hansford argued in a Yale Law Review article, describing how it offers “fragile protection… for those who fight for racial justice.” He suggested that one of the core theories of Derrick Bell Jr., a founder of critical race theory, applies. “In short, the theory says that the principle of interest convergence applies: the interest of Blacks in achieving racial equality will be accommodated only when it converges with the interests of whites,” Hansford explained. He described Bell’s work analyzing historical instances of racial reform to demonstrate that these reforms depended upon “sociopolitical and socioeconomic context in which the benefit of the racial reform did not just go to the minority group, but also went to the majority group.”

During the Civil Rights Movement, Hansford said, the Supreme Court upheld the rights of protestors in many decisions in a “positive trend” through the 1960s that seemed to expand the space for civil rights protestors to engage in freedom of assembly. However, a “sharp turn” occurred in 1966, the same year the Black Panther Party was founded. “We saw protests shift from protest against segregation,” Hansford said, “… to protests against police brutality… that were seen as more militant.” Hansford referenced Adderly v. Florida and Walker v. City of Birmingham as examples of when “we see the Court no longer taking this view of accommodation towards some civil rights protests.”

Earlier in the panel, Tabatha Abu El-Haj, a leading expert on the First Amendment who teaches at Drexel University, described other limitations on first amendment protection for protestors and people who gather for political purposes. The “doctrinal root of the problem,” Abu El-Haj said, is “the way that the Court has collapsed the First Amendment rights of assembly and speech into one another, creating a sort of pre-expression doctrine in which speech reigns.” Protestors’ “weak shield” is caused by a differential between protections for speech compared to public assembly. For example, although the Warren court “threw out various convictions of civil rights protesters for trespass and other disorderly conduct sorts of crimes,” it “repeatedly indicated that the right of assembly… did not protect what [Abu El-Haj] would call nonviolent but disruptive protest.” As a result, she said, “it always reassured states that had those protesters broken the law by, for example, obstructing traffic or failing to have a lawful permit they could have been arrested as individuals or dispersed as a crowd.”

Abu El-Haj argued that freedoms of speech and assembly should have comparable protection: “I agree, actually, that in the speech context the line should be violence. But... I’m pushing that for the right of assembly, the line should also be violence and that there’s a payoff for beginning to apply the right of assembly as an independent doctrine.” In this way, nonviolent protestors could have more confidence that they will not be arrested. The clarification would also help define the line between a constitutionally protected assembly and a riot. Abu El-Haj listed cases related to the Capitol insurrection and militant white supremacist groups at Unite the Right rallies and explained that many of these defendants have successfully argued against the Federal Anti-Riot Act by claiming their speech was protected. She emphasized, “Currently, the protesters that most benefit from the doctrinal setup — in which all the analysis is about speech — are actually violent protesters.”

Repeating history

Harrell expressed shock at the first-hand accounts of panelists on their experiences with “attempts to chill legal First Amendment expression.” She said she hopes the symposium will give participants information to use every day. “I know many of my fellow classmates in attendance have served a legal observers at protests and hearings in the past, and I hoped that this knowledge might inspire others to act and interact with the nuances of the law.” 

“What do we do with this stuff?” Hutchinson asked as he closed his remarks, reminding viewers that everything he discussed has happened before. “Some of the earliest civil rights activity was met with brutal resistance, and so we are seeing a repetition of history,” he said. “Racism is extraordinarily resilient—it finds a way to come back, to try and defeat anything, so drawing on history is extraordinarily important.”

Everything happening today, he said, we’ve already experienced as social justice movements of the past. Hutchinson finds encouragement in John Lewis’s words to today’s activists, who expressed frustration “with the need to continue fighting issues that we’ve been fighting for centuries.” He closed by sharing Lewis’ response: “That every generation has to continue liberation struggle. Liberation is not an event. It’s not a moment that is accomplished. It is a constant struggle, he said, to find a way in which people can live their lives free of subordination and inequality.”

Hutchinson said that he’ll take that idea with him as he and others try to get to the “beloved community” that Lewis strived to achieve.