by Robby Soave
Perhaps, but that wasn’t his concern, he told me. “I’m worried about people feeling safe and comfortable on campus,” he said.
The next day was just as cold and gray, but less rainy. I went back to the Diag, taking notice of several things I had missed during the bustle of the protests the day before. Advertisements for university programs hung in designated flyer-posting areas. One showed the picture of a pretty female student and the words “IT’S ABOUT EQUALITY” in all capital letters. Another asked, “What does social justice mean to you?” It was an advertisement for the School of Education.
Then there was the block M itself, surrounded on all sides by four separate but identical messages: “Black lives matter,” thrice in white and once in pink. The messages were written not in chalk—chalking is of course permitted, as Rick Fitzgerald confirmed for me when I asked him—but in spray paint.
A Double Wrong
Historically, the fight for racial justice has been synonymous with the defense of free speech. Those who wanted to abolish slavery, repeal Jim Crow, desegregate schools and the civil service, end discrimination, and defend the voting rights of black Americans typically understood that the First Amendment was a tool that empowered them to make arguments for equality and liberty. It’s no accident that Mario Savio and his friends were proponents of racial harmony and free speech: these principles were morally and practically indivisible.
In the nineteenth century, there was no more passionate advocate for the rights of black people than Frederick Douglass, a gifted orator who escaped slavery and became one of the leaders of the abolitionist movement.2 His memoir, Narrative of the Life of Frederick Douglass, an American Slave, was indispensable to the anti-slavery cause.
But Douglass was also a fierce defender of free speech. In December 1860, a mob shut down a public discussion of the question “How shall slavery be abolished?” Douglass responded with an impassioned defense of the First Amendment, his “Plea for Free Speech in Boston.” Douglass defended speech as the first and foremost right of a free citizenry. “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist,” he said. “That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power.” He predicted that free speech would eventually mean the end of slavery—it was the slaveholders and their supporters who were most eager to quell discussion of the subject.
Describing censorship as “a double wrong,” Douglass was unequivocal. “Equally clear is the right to hear,” he said. “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money.”
A century later, civil rights activists such as Dr. Martin Luther King Jr. and John Lewis were by necessity free speech advocates as well. They had to be: the authorities routinely violated their free speech rights in order to oppose their movement. Lewis went to jail for carrying a sign outside a courthouse, and King was arrested for praying outside city hall in Albany, Georgia. In retrospect, the local policies prohibiting demonstrations, signs, prayers, and the distribution of literature on public property were certainly violations of the First Amendment. The day before his assassination, King implored America to “be true to what you said on paper” and recognize First Amendment rights for all.3
Indeed, civil rights activists’ efforts were aided by court decisions that reaffirmed the universality of free speech rights—even for people who were militantly opposed to civil rights. In 1969, the Supreme Court overturned the conviction of Clarence Brandenburg, a Ku Klux Klan leader who had been arrested for making inflammatory speeches against black and Jewish people. Brandenburg v. Ohio, a landmark free speech case, held that authorities could not criminalize speech merely because it was inflammatory. This decision, in support of a white supremacist’s speech, became essential to the struggle for equal rights and liberal causes in general. Later, Charles Evers, a black civil rights activist and secretary of the National Association for the Advancement of Colored People, led a boycott of stores in Claiborne County, Mississippi; this resulted in a civil suit against the protesters. The Supreme Court of Mississippi ruled against Evers and the NAACP, but that decision was reversed—after more than ten years—by the U.S. Supreme Court, which applied the Brandenburg standard. Brandenburg was also referenced in a 1973 decision that struck down the conviction of an anti-war activist for threatening to “take to the fucking streets.”
“The history of modern incitement jurisprudence begins with a KKK leader’s free speech rights and extends to a Vietnam War protester and a great civil rights icon,” Lee Rowland, a senior staff attorney at the ACLU, noted in an article for the civil rights organization’s website.4
Pauli Murray, a civil rights and women’s rights activist, would have appreciated this irony. She was a law student at Yale University in 1963 and would later become the first black woman to receive a J.S.D. from the school. That year, the Yale Political Union invited Alabama governor George Wallace, an explicit segregationist, to speak on campus. The administration was not pleased. According to the New York Times, “The provost and acting president of Yale, Kingman Brewster Jr., advised the students to withdraw their invitation. Mayor Richard C. Lee said Wallace was ‘officially unwelcome’ in New Haven.”5
One could scarcely find two people with more dissimilar views than Murray and Wallace. And yet Murray petitioned the administration to allow Wallace to come speak on campus. “The possibility of violence is not sufficient reason in law to prevent an individual from exercising his constitutional right,” she wrote in a letter to Brewster.
But many of today’s young radicals don’t have much reverence for the struggles of generations past. When I asked Ma’at, the American University student, whether she felt a connection with sixties activists, her answer was an unequivocal no.
“That’s not where we’re coming from anymore,” she said. “That was very male dominant, very preachy, very religious, and I just don’t think as many millennials are that religious.”
She complained that previous activist movements had been “co-opted by black men,” something her intersectional generation—with its increased focus on gender, sexuality, and other forms of oppression that aren’t exclusively built around race—is determined to prevent.
“As a black woman, I don’t want a black man speaking for me when I’m very much capable of speaking for myself,” she said. “So I think that in terms of just civil rights activism, I think that that’s not what we’re doing here.”
Ma’at is representative of a new crop of activists much too young to feel a kinship with the sixties. The galvanizing event for her movement wasn’t Selma in 1965, or even Rodney King in 1991—it was a series of deaths beginning with the killing of Trayvon Martin in 2012. Martin, a black seventeen-year-old, was fatally shot by a Hispanic neighborhood watch volunteer named George Zimmerman in Sanford, Florida. Martin had committed no crime, but Zimmerman, a wannabe lawman, spotted the teen and thought he looked suspicious, and approached him after calling the police. Zimmerman later claimed he had acted in self-defense, and the cops—having no reason to disbelieve this—declined to arrest him. He was charged with murder after Florida governor Rick Scott appointed a special prosecutor to handle the case. Ultimately, Zimmerman was acquitted, to the considerable consternation of those who thought—not unreasonably—that anti-black racism was at play.
On July 17, 2014, a tall, heavyset black man named Eric Garner was illegally selling loose cigarettes on the streets of New York City when police approached him. Garner, who had had dozens of run-ins with police over the years, pleaded with the cops to leave him alone. “Every time you see me, you want to mess with me,” he said. “I’m tired of it.” Officer Daniel Pantaleo, a white man, then approached Garner from behind and put him in a chokehold, an unauthorized maneuver. Garner was thrown to the ground, and—after muttering “I can’t breathe�
� no fewer than eleven times—died, a victim of both overzealous policing and New York’s absurdly high cigarette taxes. A grand jury declined to indict Pantaleo.
Less than a month later, a white police officer, Darren Wilson, fatally shot a black teenager, Michael Brown, after an altercation following the latter’s alleged theft of some items from a convenience store in Ferguson, Missouri. Wilson fired a total of twelve shots at Brown; the officer later claimed he was acting in self-defense and that Brown had tried to grab his gun. The Obama-era Department of Justice reached a similar conclusion after investigating the case, and a grand jury declined to indict Wilson.
But the protesters who took to the streets of Ferguson in the days following Brown’s death bought into a different narrative, which held that the teen had been in the process of peaceably surrendering when Wilson opened fire. “Hands up, don’t shoot” became the rallying cry of the protesters, based on the idea that Brown had had his hands up and uttered the plea “Don’t shoot” just before Wilson shot him dead. (The Washington Post’s “Fact Checker” section would later award this idea a full four Pinocchios.)6
In November, twenty-six-year-old Cleveland police officer Timothy Loehmann shot and killed Tamir Rice, a twelve-year-old boy, at a public park. Loehmann and his partner wrongly believed Rice was armed; the kid had actually been playing with a toy gun. Video footage of the encounter showed Loehmann driving up to Rice and shooting him immediately, without taking any time to assess the situation. A subsequent investigation revealed that Loehmann had been fired from a previous police job for emotional instability and incompetence with firearms.7 But this didn’t matter—Loehmann, too, avoided indictment. Given that Rice had done nothing wrong, and the police had unnecessarily escalated the situation, this was a particularly galling miscarriage of justice, in my opinion.
Five months later, Baltimore police officers arrested Freddie Gray, a black man, for carrying an illegal knife. They put him in a police vehicle, where the perfectly healthy twenty-five-year-old somehow suffered neck and spine injuries, slipped into a coma, and eventually died. Police failed to adequately explain how a man in custody for a trivial offense could have sustained such egregious injuries. A medical examiner ruled the death a homicide resulting from failure to properly restrain Gray during the rough ride. As with the previous cases, none of the involved officers would go on to suffer formal consequences.
Riots began following Gray’s death, and intensified after his funeral on April 27. In anticipation of possible violence, police shut down a public thoroughfare, which prompted some students from a local high school to throw rocks and bricks at officers. The violence spread from there: rioters lobbed a Molotov cocktail at police, looted and set fire to a nearby CVS, destroyed a senior center, and injured fifteen officers. The mayor’s office reported 144 vehicle fires, fifteen other fires, and nearly two hundred arrests, according to the Associated Press.8 Another riot took place the following night.
In response to these and other instances of the government denying justice to the families of black people who were wrongly killed, the Black Lives Matter (BLM) movement came into being. It started as a hashtag—a way to label a statement on the internet, essentially—on social media sites: #BlackLivesMatter. The group is broad-based, is informally run, and possesses little in the way of an official hierarchy, though three self-described “radical black organizers,” Alicia Garza, Patrisse Cullors, and Opal Tometi, are credited as its founders. According to the group’s website, under a heading called “Herstory” (“History” would be improperly gendered, one gathers), “The space that #BlackLivesMatter held and continues to hold helped propel the conversation around the state-sanctioned violence they experienced. We particularly highlighted the egregious ways in which Black women, specifically Black trans women, are violated. #BlackLivesMatter was developed in support of all Black lives.”9
Garza, now thirty-seven, has long black braids and a septum piercing. When I interviewed her, she ended our conversation with an exhortation to “stay strong woke.”
She was the one who came up with the phrase “Black lives matter,” she told me. “What I was intending to do was just express my own feelings about the aftermath of [the George Zimmerman] verdict,” she said. “What we found was that we weren’t alone in that anguish, and in that rage, and in our desire to actually get organized with other people. To figure out how we can get to a place where we’re not having mothers losing their children before it is their time.”
According to Garza, too many people trip themselves up trying to interpret her movement’s actions and parse its goals. She favors a literal approach. “When I say black lives matter, I mean black lives matter,” she said. “I don’t mean all lives matter, I don’t mean black and brown lives matter. I mean black lives matter. I’m very intentional about why. It doesn’t mean I don’t think all lives matter. But when we say black lives matter, it means just that.”
Garza disputed my characterization of Zillennial activism as fundamentally different from what came before it, preferring to see intersectional progressivism as an extension of the past. “None of these tactics are new,” she said. “It’s just a new time.”
Even so, Garza echoed the sentiments of other activists, asserting that the movement must be intersectional. “In order to build a movement for and by black people, we have to include all black people,” she said. “So we can’t just say, ‘Only black people that are this gender and heterosexual.’ Because that leaves out black people who are queer, black people who are trans; it leaves out a whole bunch of people.”
What does Black Lives Matter want? The movement opposes police brutality, racial profiling, and the kinds of criminal justice policies that have led the Unites States to jail vastly more people, proportionally speaking, than any other country in the world. These aren’t exactly new demands, but the greater media attention to and public awareness of wrongful police killings of black people have given the issues a sense of heightened urgency in recent years.
“Black Lives Matter has provided the first truly large-scale political mobilization against police violence and mass incarceration since the War on Drugs began,” wrote Jacob Levy in an article for the liberal Niskanen Center. Levy went on to praise the kind of identity politics that BLM represents as “one of the most significant political mobilizations in defense of freedom in the United States in my lifetime.”10
By no means are these merely left-wing causes. Liberals and libertarians have supported criminal justice reform since well before BLM came into existence, and even many conservatives were increasingly willing to question mass incarceration, the war on drugs, and the efficacy of increased police militarization in the last decade. High-profile Republicans including Senators Mike Lee and Rand Paul have joined their Democratic colleagues in sponsoring legislation that would reform mandatory minimum sentencing—laws that obligate judges to impose unnecessarily harsh penalties on convicted criminals. As recently as 2014, congressional passage of significant criminal justice reform legislation seemed all but inevitable, since the issue is truly bipartisan.
Several developments—most notably, the election of straightforwardly pro–law and order Republican president Donald Trump and the elevation of reliably pro-cop Senator Jeff Sessions to the attorney general position—muted the expectations of many who support criminal justice reform (including the author of this book).
“Last year, despite significant bipartisan support in Congress, criminal justice reform crashed on the shoals of an election year, the opioid crisis, and ongoing and escalating tensions between police officers and the communities they serve,” wrote the Heritage Foundation’s John Malcolm and John-Michael Seibler at the end of 2017.11
The next year was more encouraging. Sessions lost his job, and Trump endorsed the bipartisan First Step Act, which would make it easier for judges to impose lenient sentences. Incidentally, Trump’s proximity to the world of reality TV means that he occasionally takes his cues from people like Kim K
ardashian and Kanye West, both of whom visited the White House to sell the president on backing criminal justice reforms.
Even so, candidate Trump ran hard on the idea that law enforcement officers, rather than innocent black citizens, were the true victims of injustice—and he won. Despite Levy’s contention that BLM has been “one of the most significant political mobilizations in defense of freedom,” we must consider the possibility that BLM’s arrival on the scene in 2013 and 2014 actually harmed the cause of criminal justice reform, by associating policies that had been gaining popularity on their own (sentencing reform and drug decriminalization) with appeals to race-based identity politics. When criminal justice reform was about fairness, big government, and the unaffordability of locking everybody up, its advocates were making strides. After the issue became more explicitly about race, the nation elected Trump in response.
This, of course, is a chief failing of intersectionality: framing a specific issue in identitarian terms makes it less appealing to people who do not identify with the category of marginalization in question. This in turn results in the issue coalition being less diverse and thus prone to tactical errors, such as engaging in performative acts that confirm the wokeness of the in-group but scare off others.
A good example unfolded at William and Mary College in October 2017. The college had invited Claire Gastañaga, executive director of the American Civil Liberties Union in Virginia, a graduate of William and Mary, to come speak on campus. The subject of her talk, ironically, was “Students and the First Amendment.” She planned to discuss the legal rights of student protesters.
That’s not what happened. Gastañaga had scarcely said hello to the audience before a group of students calling themselves Black Lives Matter at W&M marched to the front of the room. Gastañaga attempted to mollify the mob by declaring her sympathy with the protesters—“Good, I like this,” she said—but to no avail. The shouting soon drowned her out.