First Amendment Protections for "good Trouble"

• Publication year: 2023

First Amendment Protections for "Good Trouble"

Dawn C. Nunziato

FIRST AMENDMENT PROTECTIONS FOR "GOOD TROUBLE"

Dawn C. Nunziato^* ABSTRACT

In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s,^** activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation's racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today's civil rights activists who seek to protest police brutality, other forms of oppression, and disregard of Black lives, and who seek to educate the public about our nation's legacy and practice of systemic racism. Today's civil rights activists have been met not just with counterspeech but with efforts to silence them—for example, by the anti-protest statutes enacted in many states, by efforts to financially cripple protest movements through the novel theory of "negligent protest" liability, and by so-called anti-Critical Race Theory laws that originated in a Trump-era Executive Order and that have now been enacted in many states, which muzzle the teaching of concepts of systemic racism in our public education systems—including at the college level.

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Fortunately, the successes of the classical era of the Civil Rights Movement were not limited to addressing racial discrimination and segregation: they also brought about powerful changes in First Amendment doctrines and ushered in the development of powerful doctrinal tools that can now be wielded by modern-day civil rights activists to defeat these modern-day efforts to silence messages of antiracism. These doctrines include the prior restraint doctrine, the vagueness and overbreadth doctrines, the public forum doctrine, the expressive conduct doctrine, the right to associate (including anonymously and without incurring liability for protest-related harms), and the right to fairly criticize public officials (without fear of defamation liability). In the context of modern civil rights and social protest movements, such First Amendment doctrines can and should serve as powerful weapons to defeat present-day attempts to inhibit the ongoing quest for racial equality.

TABLE OF CONTENTS

INTRODUCTION........................................................................................ 1189

I. HOW THE CLASSICAL CIVIL RIGHTS ERA CASES FORGED FUNDAMENTAL FIRST AMENDMENT DOCTRINES........................... 1191

A. The Prior Restraint Doctrine ................................................ 1191
B. The Vagueness and Overbreadth Doctrines........................... 1196
C. The Right to Engage in Expressive Conduct.......................... 1203
D. The Right to Criticize Public Officials................................... 1208
E. Associational Rights and Limitations on Liability for Illegal Acts of Others ....................................................................... 1211
E. First Amendment Protections for Controversial Subjects in Public Education .................................................................. 1214

II. FIRST AMENDMENT DOCTRINE AND THE ADVANCEMENT OF CIVIL RIGHTS TODAY................................................................... 1219

A. How the First Amendment Expressive Conduct, Prior Restraint, and Public Forum Doctrines and the Rights to Criticize Public Officials and to Associate Anonymously Protect Today's Civil Rights Activists ................................... 1219
B. How the Void for Vagueness First Amendment Doctrine Can Be Wielded to Invalidate Legislation Restricting the Teaching of Concepts Involving Systemic Racism in Public Education .................................................................. 1221
C. Anti-Protest State Legislation and Case Law ......................... 1237

CONCLUSION............................................................................................ 1244

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INTRODUCTION

The more things change, the more they stay the same. This unfortunately is true with respect to the efforts of civil rights activities and the response of the dominant power structure in the United States. In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country.¹ This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation's racist practices.² Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today's civil rights activists who seek to protest police brutality, other forms of oppression, and disregard of Black lives, and who seek to educate the public about our nation's legacy and practice of systemic racism. Today's civil rights activists have been met not just with counterspeech but also with efforts to silence them—for example, by the anti-protest statutes enacted in many states, by efforts to financially cripple protest movements through the novel theory of "negligent protest" liability, and by so-called anti-Critical Race Theory laws that originated in a Trump-era Executive Order and that have now been enacted in many states, which muzzle the teaching of concepts of systemic racism in our public education systems (including at the college level).³

Fortunately, the successes of the classical era of the Civil Rights Movement were not limited to addressing racial discrimination and segregation: they also brought about powerful changes in First Amendment doctrines and ushered in the development of powerful doctrinal tools that can now be wielded by modern day civil rights activists to defeat these modern-day efforts to silence their messages of antiracism. In this classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, civil rights activists successfully advanced a host of novel First Amendment arguments to protect them in the exercise of their freedom of speech, assembly, association, rights to protest, demonstrate, criticize public officials, and petition the government for redress of grievances.⁴ While these activists were protesting racial discrimination and segregation, they

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were also advancing the development of now-fundamental First Amendment doctrines, including the prior restraint doctrine, the vagueness and overbreadth doctrines, the public forum doctrine, the expressive conduct doctrine, the right to associate (without incurring liability for protest-related harms), and the right to fairly criticize public officials (without fear of defamation liability).⁵ These classical era cases strengthened and developed the First Amendment's host of protections for unpopular speakers against governments who sought to punish their expressive activity. While the First Amendment was notoriously ineffective in protecting the rights of socialist, communist, and anti-war activists in the first part of the twentieth century, this amendment became an effective and increasingly robust weapon to protect civil rights activists in the 1950s, 1960s, and 1970s. As Supreme Court Justices were articulating First Amendment doctrines to protect the rights of these activists in the exercise of their civil rights, they were also forging an increasingly strong interrelated set of protections for freedom of expression.

Many of the fundamental First Amendment doctrines that were forged in the classical civil rights era are implicated in the context of modern-day civil rights and social protest movements, like the Black Lives Matter movement and movements critical of police misconduct, as well as educators' efforts to teach students about the effects of systemic racism within our public institutions of learning. These modern-day movements, like those of the classical civil rights era, have been met with opposition, including litigation and legislation.⁶ The First Amendment doctrines that were forged in the classical civil rights era continue to be significant in confronting such forms of opposition and in advancing and protecting today's civil rights activists in their exercise of their freedom of speech, assembly, association, expressive conduct, and rights to protest, demonstrate, criticize public officials, and petition the government for redress of grievances.

Part I of this Article analyzes in detail the evolution and advancement of these fundamental First Amendment doctrines during the classical civil rights era of the 1950s, 1960s, and 1970s. Part II examines the continued relevance of these doctrines in the context of today's civil rights and social protest movements. Section II.A focuses on an examination of these doctrines in the context of modern-day protests and efforts to restrict the rights of protestors through litigation and legislation. Section II.B turns to an examination of these

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doctrines in the context of legislation adopted by a number of states in recent years that restricts teaching of so-called "critical race theory," concepts of systemic racism, and related concepts in our public schools, colleges, and universities. This Article concludes by observing that the First Amendment doctrines that were forged and strengthened during the classical civil rights era can successfully protect modern-day civil rights advocates against efforts to suppress their rights.

I. HOW THE CLASSICAL CIVIL RIGHTS ERA CASES FORGED FUNDAMENTAL FIRST AMENDMENT DOCTRINES

In the classical civil rights era of the 1950s, 1960s, and 1970s, the Supreme Court forged and expanded a...