The First Amendment, Black liberation and you

First Five by the Freedom Forum Institute

Jun 11, 2020

By Benjamin Marcus

The First Amendment has had a landmark year — and it’s only June. The devout invoke religious freedom while debating whether it is appropriate to ban in-person religious services during the COVID-19 pandemic. The socially conscious assemble to protest en masse against police brutality and to affirm that Black lives matter. Journalists risk their safety to exercise the right of the press to report on matters of public interest, even though they risk wrongful arrest or assault by officers in riot gear.

Progressives and conservatives alike have taken to the streets and courts to advocate for their dreams for the nation’s future. But in the midst of this national reckoning about our failure to safeguard liberty and justice for all — when people across the religious, political and ideological spectrum are exercising their rights — everyone should acknowledge one important fact: we are all protected by the First Amendment because of the struggle for Black liberation.

When the Bill of Rights was adopted in 1791, the First Amendment applied only to the federal government. States were not obligated to enact laws to protect the fundamental freedoms of religion, speech, press, petition or assembly.

In fact, some states had constitutions that abridged these freedoms. For example, four of the 13 original states — Connecticut, Georgia, Massachusetts and New Hampshire — provided some sort of direct aid to churches, which would today constitute a violation of the establishment clause of the First Amendment. Massachusetts was the last state to disestablish in 1833.

Even after 1833, the First Amendment did not protect religious freedom — or any of the five freedoms — for all. White Americans continued to deny enslaved Black people the “unalienable rights” touted by the Declaration of Independence and the U.S. Constitution. Despite lofty rhetoric that “all men are created equal,” the country violated the rights and dignity of entire classes of people on the basis of race.

Our nation confronted its hypocrisy, in part, during and after the Civil War. Between 1865 and 1870, states ratified three Constitutional amendments, known as the Reconstruction Amendments, which recognized certain fundamental rights for all which had previously been reserved for white Americans. The 14th Amendment, adopted in 1868, guaranteed “due process of law” and “equal protection of the laws” to “any person.”

It is the 14th Amendment — a direct outcome of the Civil War and the ongoing struggle for Black liberation — that ultimately guaranteed First Amendment protections across the entire nation. Through a legal process known as incorporation, the U.S. Supreme Court extended the reach of the First Amendment through the due process clause of the 14th Amendment. In a series of cases starting in 1925, the court affirmed that each of the five freedoms applies at both the state and national level.

In other words, Americans today who cherish and exercise their First Amendment rights without fear of state intrusion owe a debt of gratitude to the 14th Amendment — and by extension to the struggle for Black liberation.

But as civil rights activist and poet Audre Lorde declared, “Revolution is not a one-time event.” In addition to the Civil War, the adoption of the 14th Amendment and the process of incorporation — each of which functioned as new American revolutions — we needed the Civil Rights Movement of the mid-20th century to continue expanding the protections of the First Amendment. As First Amendment expert Robert O’Neil attested in 2002, “It is likely that the same First Amendment doctrines would not have developed at the same rate and with the same force or conviction were it not for the civil rights movement.”

And the revolution continues today. While the First Amendment now applies to all in law, it does not apply equally in action. In just the last month, we have seen police use excessive force against unarmed protestors who decry racism, and the deaths of George Floyd, Breonna Taylor and Tony McDade — all three of whom were Black Americans killed by police — whereas heavily armed white Americans who threatened officials at the Michigan Capitol faced no violence.

The First Amendment risks being an empty promise until it protects all in law and in practice. As Martin Luther King Jr. famously explained, “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” Once again, those who lead the struggle for Black liberation are pushing our country to live up to its highest ideals — and that benefits us all. Non-Black Americans who want to protect the five freedoms of the First Amendment would do well to join cause with movements for Black liberation.