Imperialism and Black Dissent.

• Author: Farnia, Nina

Table of Contents Introduction I. U.S. Imperialism and the National Security State A. The Imperial State of Emergency B. The Smith Act of 1940 C. The National Security Act of 1947 D. The Second Red Scare 1. State laws 2. Dennis v. United States II. Shades of Blackness in the First Amendment A. Black Communism and the Case of Claudia Jones B. Walker v. City of Birmingham C. The Counterintelligence Program: Internal Security D. The Movement for Black Lives 1. Black identity extremists and Operation Iron Fist 2. National Strategy for Countering Domestic Terrorism 3. The Joint Terrorism Task Forces and transnational aspects of domestic terror III. Silencing Black Dissent: The Colorblind Uses of the Past A. The Racialization of Black Dissent over Time B. The Curious Genealogy of Content Neutrality Conclusion Introduction

"One who reads this record will have, I think, the abiding conviction that these people were denied a permit solely because their skin was not of the right color and their cause was not popular," proclaimed Justice Douglas in his scathing dissent in Walker v. City of Birmingham. (1) In Walker, the Court found in favor of the City of Birmingham after Commissioner Eugene "Bull" Connor refused to give the Southern Christian Leadership Conference a permit to protest segregation laws on Easter weekend 1963. (2) Connor was an avid segregationist, best known for ordering attacks on Black children with police dogs and fire hoses during the Children's Crusade marches to protest racial apartheid in Birmingham on May 3, 1963. (3) On the day before the attacks, he had ordered the arrests of 900 Black children in what would later be remembered as one of the most violent episodes of the Civil Rights Movement. (4)

Walker v. City of Birmingham is often treated as a historical outlier in civil rights and civil liberties jurisprudence. (5) According to the prevailing logic, the Warren Court largely protected the First Amendment rights to freedom of speech and association in order to promote racial equality (6) and advance what legal scholars have called a "constitutional revolution." (7) Of course, Chief Justice Warren's enthusiastic support of Japanese internment during his tenure as California Attorney General (8) belies this narrative of constitutional veneration. (9)

Such normalized treatment of the First Amendment warrants reexamination. In this Article, I contend that Black Americans have historically had uneven access to the right to freedom of speech. (10) I conduct four case studies that are representative of key trends in Black dissent after World War II: Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives. (11) Through archival research and legal analysis, I illustrate how U.S. imperialism has shaped both the First Amendment right to freedom of speech and the national security state, narrowing the contours of Black dissent in the United States. (12)

The dynamic relationship between state suppression of both Communist dissent and Black dissent has shaped the modern First Amendment in significant ways. While the state completely suppressed Communist dissent, it could not do the same with Black dissent, for then the world's nonwhite peoples, the great majority of the global population, would view the United States as a disingenuous critic of the Soviet Union. (13) Rather, the state sought to discipline Black dissent, offering concessions on issues pertaining to segregation and voting rights while delimiting the economic-justice impulses that animated much of Black radical activism.

Such concessions led to significant shifts in constitutional jurisprudence. This Article tracks those shifts with regard to the First Amendment right to freedom of speech, which came to be a key force in the management of Black dissent during and after the Cold War. The case studies in this Article, when analyzed alongside one another, expose how the First Amendment facilitated the deportation of Black Communists and the bifurcation of the Civil Rights Movement from Communism in the early years of the Cold War. (14) This bifurcation disturbed the ideological synergy between the two movements and led to the simultaneous deradicalization of the Civil Rights Movement and marginalization of U.S. Communism. After the rise of the Civil Rights Movement and Black Power, the First Amendment then failed to protect the legitimate speech of those movements against the onslaught of the FBI and local police. (15)

But the First Amendment does not function in a historical or political vacuum. As the modern national security state evolved in response to U.S. imperialism and the rise of Communism, it too came to be a major force in the suppression of Black dissent, disciplining and undermining freedom of speech. I contend that the rise of U.S. imperialism and the modern national security ideology during World War II are key factors shaping Black dissenters' access to freedom of speech today. Black rebellion and dissent have been treated as matters of domestic security in the United States since the founding of the nation. (16) In fact, the federal government was suppressing the activism of Black radicals as early as World War I. According to Theodore Kornweibel, Jr., federal agents were monitoring Black radicals during the early twentieth century purely because of their speech and activism. (17) In 1919, Attorney General A. Mitchell Palmer "submitted to the Senate a lengthy report on the Investigation Activities of the Department of Justice," warning that "[p]ractically all of the radical organizations in this country have looked upon the Negroes as particularly fertile ground for the spreading of their doctrines....[T]he Negro is 'seeing red.'" (18) Notably, the modern political intelligence system took shape during this period and into World War II and, by the Cold War, had become a permanent establishment. (19) Policy shifts proposed by Cold War-era strategists like Ambassador George F. Kennan, Secretary of State Dean Acheson, and FBI Director J. Edgar Hoover led to a complete restructuring of the national security apparatus, which further enabled the repression of Black dissent and has come to impact domestic security policy as well. (20) Because domestic security in the United States necessarily involves the management and suppression of racialized rebellion and radical dissent, national security ideology and the First Amendment cannot be decoupled from one another. (21)

The rise of the modern national security state is coterminous with the global expansion of U.S. imperialism following World War II. (22) During this era, three political developments shaped the ascendance of U.S. imperialism: the spread of Communism throughout the world, (23) the rise of anticolonialism in the "Third World," (24) and the intensification of domestic racial and anticolonial rebellions. (25) As the United States sought to defeat Communism globally, gain economic and political ground in the decolonizing world, and suppress domestic rebellions, it needed a unified political and military apparatus that could execute projects swiftly and decisively through intense collaboration and resource sharing.

I define the modern national security state as a bureaucratic, legal, and military apparatus that organizes the state's resources behind a permanent program of peacetime military preparedness. (26) What makes the national security state distinct from the state at war is that the national security state can operate at its peak both in peacetime and wartime. (27) To that end, it marshals civilian and military resources to strengthen peacetime military preparedness and unify it with systems of power and repression commonly used in wartime. (28) In the U.S. context, the national security state relies on racialized ideological notions that mark nonwhite peoples as permanent potential threats, (29) thereby justifying the exercise of racial power through partnerships across federal, state, and local law-enforcement agencies--and with foreign governments as well.

Ultimately, I argue that, as the national security state took shape during the Cold War, the First Amendment came to be structured by anticommunism, white supremacy, and U.S. imperialism--impacting a wide range of dissenters, from Communists and civil rights activists to those involved with the contemporary Movement for Black Lives. (30) The case studies below suggest that government repression operates in conjunction with free-speech colorblindness, a phenomenon I track in the final Part of the Article, to narrow the speech rights of Black dissenters and ultimately contain Black dissent. In essence, the modern national security state is one of the power structures undergirding the First Amendment.

Collaboration across various law-enforcement agencies plays a key role in the suppression of domestic dissent. During the early stages of the Cold War and the Civil Rights Movement, both local and federal law-enforcement agencies were engaged in suppressing Black dissent. (31) By the rise of the Black Power movement (32) and the formal creation of the FBI's Counterintelligence Program, local and federal agencies had developed avenues of collaboration that became increasingly institutionalized. Once the Joint Terrorism Task Force was established in the 1980s, interagency collaboration came to be a mainstay in the domestic antiterrorism apparatus, as indicated by the Biden Administration's National Strategy for Countering Domestic Terrorism, announced in June 2021. (33) Notably, in each era, law-enforcement agencies characterized Black dissent as extremist or marginal. (34) This characterization was applied to each of the Black activist movements I evaluate, despite their different ideological tendencies and varying intensities in protest tactics.

Recently, several scholars have written about the relationship between Black dissent and the First...