Two Americas—But Only One First Amendment

Racial injustice has historically plagued the United States. Over the past year society has engaged in a new level of awareness about these issues. This awareness has motivated the modern struggle for civil rights in the United States. At the forefront of the fight for a truly equal country are those who actively promote the Black Lives Matter movement. 

The Black Lives Matter (BLM) movement first organized in 2013 as a demand for justice when Trayvon Martin’s killer was aquitted of murder. Martin, a Black teenager, was returning from a convenience store when George Zimmerman, a neighborhood watch volunteer, shot and killed him. The BLM founders, Patrisse Cullors, Alicia Garza, and Opal Tometi, recognized that Martin’s tragedy was not unique, nor was the legal system’s response to his death. The history of the United States is shaped by the continued, violent oppression of Black communities. Martin’s murder and the acquittal of the man responsible for his death exemplified the glaring inequities of this country—inequities that clearly follow a racial divide. These three women sought to generate a movement that celebrates Black existence and eradicates white supremacy—an undeniably worthy mission. This movement grew into a global organization that today continues the fight for racial justice. Over the past year the movement has been firmly at the forefront of this nation’s overdue reckoning with racial inequality.

An examination of almost 250 years of history reveals that the legal system in the United States has demonstrated a repeated and egregious disregard for Black lives. In his speech, The Other America, Dr. Martin Luther King, Jr. described this country as not one unified nation, but instead “two Americas,” each starkly different on either side of a deep racial divide. Over fifty years later, that idea still applies in full to this nation. Last year, this country’s abuse of Black communities reached a boiling point met with widespread public protest. The loudest cries were in response to the disparate impacts of police brutality against Black, Indigenous, and people of color (BIPOC) communities. 

The United States has a dark origin story when it comes to law enforcement and police brutality. Systemic racism, which is in part perpetuated by law enforcement, both past and present, results in extreme racial disparities in instances of police brutality. Despite only forming 13% of the population in the United States, Black people made up 28% of the 1,127 total people killed by police in 2020. Rightfully, these statistics prompted people to take to the streets en masse to voice their outrage and demand justice. These peaceful demonstrators were met by law enforcement with the very problems of police brutality they were protesting. This reaction further proved the obvious need for reform in the application of law and the recognition of rights in different communities. 

Most protests and demonstrations are protected under the rights of the U.S. Constitution’s First Amendment. Specific to an examination of law enforcement’s reaction to BLM protests are the protections of assembly and speech. Though the five rights of the First Amendment (religious expression, speech, press, assembly, and petition to the government) are fundamental, they are not without limitation. The disparate application of these limitations is obvious when comparing the difference in law enforcement’s reaction to BLM peaceful protestors with that of law enforcement’s reaction, or lack-thereof, to actual acts of domestic terrorism performed by white insurrectionists. Indeed, in the aftermath of the attack on the U.S. Capitol, it is readily apparent that there is no legitimate justification for this disparate policing, except, as senior staff attorney for the ACLU Carl Takei notes, “white supremacy.” Sameer Rao, After Riot, Legal Reasons for Disparate Policing Prove Elusive, Law 360 (Jan. 24, 2021). 

This disparity can be understood as what Professor Jennifer Kinsley coins “an innate tension” between the First Amendment’s free speech clause and the Fourteenth Amendment’s equal protection clause. Jennifer M. Kinsley, Black Speech Matters, 59 U. Louisville L. Rev. 1, 5–6 (2020). Because of this tension, Kinsley observes, “[t]he 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.” Id. In response to protests following George Floyd’s murder, for example, these restrictions took the form of curfews, over-militarized police responses, and surveillance. According to Kinsley, courts should use equal protection principles to limit governmental suppression of speech when such restrictions are based on the racial identity of the speaker. Id. at 21.  

Last summer, Portland, Oregon, prominently displayed law enforcement’s different levels of respect for First Amendment rights dependent on race. Portland saw truly horrifying displays of excessive use of force in response to the continuous BLM demonstrations. Protestors in Portland were subjected every night to tear gas, batons, rubber bullets, and mass arrests.  Police officers targeted volunteer medics, who were attempting to help those already injured, with tear gas and projectiles. Portland police refused to provide on-site medical care to protestors and blocked ambulance access to the protests sites. Portland was not alone—from late May to June alone there were over 7,600 arrests in relation to BLM protests across the United States.  Due to their vastly peaceful nature, only a mere 7% of the protests were deemed violent, the BLM demonstrations should be protected by the First Amendment. Yet police still intervened at 1 in 10 BLM protests between the months of May and August of 2020. Of all other non-BLM related demonstrations during that same time period, law enforcement only intervened 3% of the time. In the protests that did not end peacefully, the violence was often instigated by police officers or far right “counter-protestors.” 

On June 1, 2020, peaceful BLM protestors, a whole block away the White House, were assaulted by National Guard soldiers and federal officers to clear a path for a shockingly hypocritical photo opportunity—the sitting President holding up a bible after walking by the broken bodies of his own citizens, beaten and bloodied on his orders. The policing of the BLM protest, even before Donald J. Trump exited the White House for his picture to be taken, saw an excessive amount of police power. Notwithstanding other military and non-military personnel, well over 4,000 National Guard soldiers were deployed to D.C. in response to BLM protestors. This reaction to BLM protestors and their supposed freedom of assembly, while grossly unjust at the time, now appears even worse after the white supremacist-fueled insurrection of January 6, 2021, met very different results. 

While the Senate gathered to confirm the results of the 2020 Presidential Election, the U.S. Capitol Building was breached with the intent to overthrow the democratic process. This insurrection was a blatant display of white nationalismpromoted by Donald J. Trump. FBI Director Christopher Wray described the acts of domestic terrorism as “an affront on our democracy,” and he was clear that the events of January 6 were in no way protected by the First Amendment. Despite this open condemnation of the insurrection, and a ready understanding that these actions clearly did not fit within the protections of the First Amendment, the reaction from law enforcement was shockingly different than that of the response to the BLM protests. Initial efforts to call for police reinforcement were denied. Compared to the thousands of National Guard soldiers deployed ahead of the BLM protests, and despite numerous social media campaigns that detailed the insurrection before it happened, only 340 unarmed National Guard soldiers were sent to D.C. ahead of the confirmation hearing. The insurrectionists walked around, armed and readily identifiable, in the Capitol Building. Yet only 82 total arrests were made by the next day. Three hundred and twenty-six people were arrested on June 1, 2020, during the peaceful BLM protest. Confederate flags waved in the Capitol Building, a noose and gallows was set up outside, clothing of rioters supported the Holocaust, and an abhorent array of other terrifying symbols was on prominent display for the entire nation to see. Yet we also saw pictures of police officers taking selfies with the insurrectionists, helping the more elderly down the stairs, calmly standing by as members of prominent hate groups defaced federal property—a far cry from the militarized response less than a year earlier. People openly condemned by law makers were treated as if their First Amendment rights were at issue and needed to be upheld, while over the past year law enforcement blatantly disregarded the fundamental freedoms of BLM protestors. 

The extreme opposite responses to BLM protestors compared to white supramacist insurrectionists depicts an appalling inconsistency of rights in this country. An inconsistency that upholds the severe divide between “two Americas.” A divide as old as this country that only continues to grow as we witness time and again a disparate application of what should be fundamental rights for all. 

– L. Moose


Jennifer M. Kinsley, Black Speech Matters, 59 U. Louisville L. Rev. 1 (2020). (Available on WestLaw)

Know Your Rights: Protestors Rights (ACLU)

NLG – “Thugs” and “Riots”: Legitimizing Police Violence at Protests Against Police Violence 

USA: The World is Watching: Mass Violations by U.S. Police of Black Lives Matter Protesters’ Rights (Amnesty International)

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