Emory Law Journal


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.

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.