What is protest, constitutionally? Historically? What is protected, and what is not? And what do you have to know before you grab a sign and go outside? Today we explore the long scope of public dissent from the Boston Tea Party to the current #blacklivesmatter protests.
Our guests are Alvin Tillery from Northwestern University, and Bakari Sellers, CNN commentator and author of the recent book My Vanishing Country.
Transcript
NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.
Civics 101
PROTEST
[00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.
Kayleigh McEnany: [00:00:10] The president has made clear that what we are seeing on America's streets is unacceptable. Violence, looting, anarchy, lawlessness are not to be tolerated. Plain and simple, these criminal acts are not protest. They are not statements. These are crimes that aren't innocent American citizens.
Alvin Tillery: [00:00:31] I do see a kind of inherent double standard in the way we valorize certain anger, certain property damage. And, you know, if the cause is racial justice or LGBTQ rights or women's rights, you know, our history has been much more...whoa. This is a this is violating the social order here. What's going on? Like, oh, my God, they've kicked in a Nordstrom's. We teach literally kindergartners about the Boston Tea Party.
Nick Capodice: [00:01:04] This is Alvin Tillery. He's the director for the Center for the Study of Diversity and Democracy at Northwestern University.
Alvin Tillery: [00:01:10] And I research social movements and leadership. And I've been writing about the Black Lives Matter movement with hopes that some of my research can help them succeed.
Nick Capodice: [00:01:22] I'm Nick Capodice.
Hannah McCarthy: [00:01:23] I'm Hannah McCarthy.
Nick Capodice: [00:01:24] And this is Civics 101, the podcast refresher course on the basics of how our democracy works. And since we are in the midst of the largest nationwide protest I've seen in my lifetime, we wanted to call Alvin to tell us about it, about protest. What it is what it does and has done throughout our country's history.
Hannah McCarthy: [00:01:45] Now, in terms of what it is, at its most basic level, it's people expressing their disapproval of something, right? Yes.
Nick Capodice: [00:01:56] And did you happen to see the thing Sesame Street put up this week of Elmo trying to. Did you see that?
Hannah McCarthy: [00:02:03] I did see that.
Sesame Street: [00:02:04] What's a protest? A protest is when people come together to show they are upset and disagree about something, they want to make others aware of the problem through protesting. People are able to share their feelings and work together to make things better.
Nick Capodice: [00:02:22] But legally, constitutionally, protest has been with us from the very beginning. It's written into our founding documents.
Alvin Tillery: [00:02:31] The Constitution makes protest along with speech and the free exercise of religion sacrosanct. It is the charter, right? One of the one of the charter rights and the First Amendment, the fundamental freedoms doctrine says that the First Amendment is really the one that is necessary in order to make all of the other freedoms operative. So there's what we call the right to assembly clause in the First Amendment. So Congress shall make no law. Right. And then it says in the assembly clause, it says Congress shall make no law to prohibit the right of the people to peaceably, peaceably to assemble and to petition the government for redress of grievances. Now, some people separate that and say that there are two clauses, the petition clause and the and the peaceable assembly clause. But I always saw them as kind of one clause.
Hannah McCarthy: [00:03:31] I haven't heard of the petition clause. What's the difference between protest and petition?
Alvin Tillery: [00:03:36] So petition is writing to your government, sort of expressing yourself to your government.
Nick Capodice: [00:03:43] And people could petition about anything except for a period when slavery was essentially off limits.
Alvin Tillery: [00:03:50] The gag rule that was in Congress in the eighteen thirties up to the Civil War said, you know, you couldn't even write to Congress or make petitions to Congress about ending slavery.
Nick Capodice: [00:04:02] This gag order was in the eighteen thirties when abolitionists had sent hundreds of thousands of petitions to Congress calling for an end to slavery. And Congress passed a blanket resolution that any petitions doing so are to be tabled indefinitely. Former President John Quincy Adams. He fought against it for eight years until it was finally lifted in 1844. But we don't see the Supreme Court weighing in on citizens rights to petition the government until much, much later.
Alvin Tillery: [00:04:31] We really don't even get a lot of good jurisprudence on assembly and freedom of speech until the cases that come at the height of World War One. All of the cases where the Supreme Court actually limits freedom of speech in order to protect government interests.
Nick Capodice: [00:04:55] These cases, which all arose during World War One, are the first time that the Supreme Court rules on the constitutionality of protest. The Big Three are Schenck v. U.S..That's where Charles Schenck was arrested for handing out pamphlets that criticized the draft. The next one's Gitlow v. New York, where the court decided, Benjamín Gitlow's pro communism manifesto was not protected speech. And finally, Abram's v. United States, where the court said the same about leaflets that advocated workers in ammunition factories go on strike.
Alvin Tillery: [00:05:25] Yeah, the great irony is that the formal elaboration in the early 20th century of our rights to, you know, not only petition and sort of act as individuals, but typically part of a protest. Those rights are are enumerated in cases where the Supreme Court limits the freedoms of the individuals involved.
Hannah McCarthy: [00:05:51] All right. So I've I've got this. That's how the court started to rule against the rights of protesters. But I'm interested in laws regarding the response to protest. Have there been any cases that address the powers of police?
Nick Capodice: [00:06:05] Yeah, well, police power comes at the local and state level. So many of these cases began with police action and then the issue at stake rose through the court system to the Supreme Court.
Hannah McCarthy: [00:06:15] So what are the big cases where constitutional right to protest was protected?
Nick Capodice: [00:06:21] Alvin said there have been pretty much two. And we've talked about both of them quite a bit on her show, Tinker V. Des Moines, that's the one where black armbands worn by students to protest the war were protected speech and Texas v. Johnson, where the same was decided regarding burning a flag. However, this isn't to say that there haven't been other legal rulings on the right to protest rulings that have protected the rights of groups. That may surprise you.
Alvin Tillery: [00:06:47] The other irony is that when the court in the 20th century has expanded and protected protesters, they've typically been the most noxious protesters that we will look like. So the Klan can burn crosses, you know, in the 2003 case
Justice Rhenquist: [00:07:05] Record number, 01107 Virginia against Black will be announced by Justice O'Connor.
Justice O'Connor: [00:07:11] The act of burning across may mean that the person is engaging in constitutionally prescribable intimidation, or it may mean only that the person is engaged in core political speech The prima facie provision...
Nick Capodice: [00:07:26] And it's not just one case, it's not just Virginia v. Black from the early 2000s. Protest by the KKK specifically was protected in Brandenburg v. Ohio in 1969.
Alvin Tillery: [00:07:38] In the Brandenburg versus Ohio case, now, the Supreme Court says the Fourteenth Amendment does not draw down or limit the ability of the Klan to advocate violence at its rallies. Right. Unless they are going to, you know, say let's go and lynch black people now or let's go and burn the police station down now. Right. But you can you go to a Klan rally and say, you know, we hate black people and, you know, let's use Second Amendment solutions to get out Barack Obama. You can do all of that thanks to the Brandenburg case.
Hannah McCarthy: [00:08:11] So I want to if we can get back to something Alvin mentioned at the very beginning, and that's that politicians and the public alike are calling for nonviolent protest and referencing the work done by Martin Luther King Junior and Rosa Parks.
Nick Capodice: [00:08:28] Yeah. So when we talk of peaceful protests, Alvin shared his polling data with me and he said the numbers of those who oppose the current Black Lives Matter protests are nearly identical with those who opposed NFL player Colin Kaepernick demonstrably nonviolent action of kneeling during the national anthem to protest the treatment of minorities.
Eboni Williams: [00:08:49] You know, certainly many people would agree that it's very American to to protest and it.
Bill O'Reilly: [00:08:55] There's a difference between a protest and a disrespectful protest. All right. There's a difference. And everybody should know that. My solution to this...
Hannah McCarthy: [00:09:02] Then there's the fact that we teach kindergartners that destroying property in protest when it's tea. The Boston Tea Party is great and necessary. So what's going on there?
Nick Capodice: [00:09:21] Do you know the modern day value of that team that was dumped in the harbor one point seven million dollars?
Alvin Tillery: [00:09:27] Firstly, I'll say that, you know, attacking British authority by destroying property was a very common way that the colonists protested. The Tea Party in Boston Harbor is interesting because they dressed as Native Americans because they want to hide their identity so they don't even do it in their own under their own identities. They hide under the guise of indigenous people, which if you know anything about indigenous history in Massachusetts. It's absolutely preposterous. They'd been sort of decimated by the colonists, you know, 80, 90 years earlier and then in the Pequot Wars. And so, you know, the idea that the indigenous people would have snuck into the harbour to burn tea or dumped dumped tea into the harbors is preposterous. Right. But but there was a class element to all of these uprisings. Right. These were the working people.
Alvin Tillery: [00:10:28] These were the Scotch Irish immigrants. These were Crispus Attucks, the biracial former slaves who were the kind of vanguard of the revolution. Right.
Alvin Tillery: [00:10:41] Who, you know, Sam Adams had organized in the Sons of Liberty to get out and to make these kinds of jarring, disruptive, often violent protests to raise the consciousness of the other colonists who were like, whoa, like, I don't like paying these tea and stamp taxes either, but like, we're still British, man. Calm down. Right.
Alvin Tillery: [00:11:02] And so this kind of, you know, rallying effect behind property damage is part of what the the early organizers hope to do.
Nick Capodice: [00:11:13] Alvin said that there have been so far in American history, three movements that changed our country. The Boston Tea Party, Shay's Rebellion, which began in 1786 over wartime debt and led to necessity for a new constitution. And finally, the long, still continuing civil rights movement, which stretches from early abolitionists to its peak in the 1950s and 60s.
Hannah McCarthy: [00:11:36] You know, scholars have for a while now been pointing out that there's been lots of violence and there have been a lot of riots that maybe you and I didn't learn about in school for many reasons, one of which is that the victims were not white.
Nick Capodice: [00:11:54] This is after the Civil War. One of the first that comes to mind is the one that was depicted in the TV series The Watchmen, the bombing of Tulsa, Oklahoma, 1921.
Alvin Tillery: [00:12:04] Those are riots that we have forgotten intentionally because they were riots that were done to keep the racial order in place.
Alvin Tillery: [00:12:17] Those hundred and thirty riots that happened between the reconstruction in 1945, those were race riots that were done because, again, low status elements were upset typically that blacks or Asians would have, had violated some imaginary, you know, segregation line in these places and hundreds and hundreds of people died in each instance. Right. This is the modal, you know, riot in American history. It's a race riot to destroy, you know, communities of color, typically to seize property. Look what happened in the Greenwood district in Oklahoma. Tulsa, Oklahoma. Wilmington, North Carolina. East St. Louis, Illinois. These are riots that razed these communities. The outsiders, the black, brown, you know, Asian outsiders flee and then low status whites claim all that property. Right. If these are there, these are redistributions through riotous behavior. Right.
Alvin Tillery: [00:13:28] And so, you know, we don't like to talk much about that. Most Americans think that when you think race riot, you think, oh, what happened in Watts and Newark after Dr. King was assassinated? Right. And that's just a drop in the bucket of our our history of rioting in this country.
Hannah McCarthy: [00:13:49] These riots against communities of color resulted in their property being taken.
Nick Capodice: [00:13:57] Yeah, taking property was the express purpose of many of these riots. The name for it is white capping. I read that between 1880 and nineteen hundred and there were two hundred and thirty nine documented instances of it.
Hannah McCarthy: [00:14:14] Okay, Nick, you have talked to Alvin about the history and protections and lack of protections around protest, but due to the fact that many Americans are viewing current protests in the context of that long civil rights movement. I wanted to talk to someone intimate with that story.
Bakari Sellers: [00:14:33] Well, you know, Hannah. I'm a child of the movement. And I say that with a great deal of pride and humility.
Hannah McCarthy: [00:14:40] This is Bakari Sellers. He's a political commentator on CNN. He was the youngest African-American elected official in the nation and he is the author of the recent book My Vanishing Country.
Bakari Sellers: [00:14:52] My father got started. His activism was piqued at a very young age. He was 10 years old when young Emmett Till was brutally murdered and thrown in the bottom of the Mississippi River. And that picture went viral. You know, we're having this conversation about these images that we're seeing, of black bodies that have been killed and brutally lynched right before our eyes. And for him, it was Emmett Till in 1955. And it his mother had the strength to allow the world to see what hate, bigotry and racism had done to her son.
Hannah McCarthy: [00:15:23] Bacardi's father is Cleveland Sellers. He's a man who led sit ins in his hometown of Denmark, South Carolina. He went to Howard University, where he met prominent civil rights organizer Stokely Carmichael and later worked during Freedom Summer in 1964, when several hundred people went to Mississippi to help to register African-American voters.
Bakari Sellers: [00:15:47] And then he got a phone call that some of his friends had gone missing. And as we're talking about this word that comes up a lot now, allies, you know, I think about allies in history and I think about Andrew Goodman and Mickey Schwerner and James Chaney.
Hannah McCarthy: [00:16:05] Goodman, Schwerner and Chaney had come south for Freedom Summer. They were kidnapped and murdered on the project's first day. That's June 21st.
Bakari Sellers: [00:16:14] My father led search missions into Philadelphia, Mississippi, to look for their bodies. Their bodies were found behind the home of one of the local sheriff's deputies and ministers in the town, Edgar Ray Killen. And that was his first indoctrination, indoctrination into the movement. And then he became involved in the most deadly civil rights demonstration this country's ever seen.
Bakari Sellers: [00:16:33] On February 8th, 1968, they were protesting what the history books call the last vestige of discrimination. It was a small whites-only bowling alley in little Orangeburg, South Carolina.
Harry Floyd: [00:16:45] Mr. Floyd. Why have you not permitted Negroes to bowl at your bowling alley here in Orangeburg? Because I have my own customers that patronize me scripted to see. They support me year in and year out. I need no other.
Bakari Sellers: [00:17:02] And after they protested, they went they went back to their campus, I have to stress that fact they went back to their campus, they built huge bonfires and they can't foresee what would happen next. They didn't foresee that South Carolina state troopers would line up along the embankment in front of their campus. They didn't foresee that they would close ranks like they did, and they didn't foresee that they would have shotguns loaded with deadly buckshot and they didn't foresee they'd be turning on them with deadly intent. And it's eerie to talk about this now with the backdrop of everything that we have going on in this country today. But state troopers fired shots into the group of students and and killed three Henry Smith, Samuel Hammond and Delano Middleton. And they wounded my father.
Bakari Sellers: [00:17:44] And he was one of 28, was wounded and a little salt to injury when he got to the hospital. What else do you do to activists? That they arrested, they arrested him in Charleston with five felony counts.
Bakari Sellers: [00:17:55] All eight officers were charged. They were all tried. They were all found not guilty. And my father went to trial. They backdate his indictment from February 8th to February 6th. He was charged, tried and convicted of rioting. He became the first and only one man riot in the history of this country. But, you know, for me, it's the fact that that story isn't told or remembered that hurts more than anything we know about Kent State. But we don't know about Orangeburg.
Hannah McCarthy: [00:18:21] And, Nick, I have to admit to you, I did not know about Orangeburg until I read Bacardi's book.
Nick Capodice: [00:18:28] Yeah, no, me neither.
Hannah McCarthy: [00:18:29] And though the officers were acquitted, Cleveland Sellers served seven months in state prison. So I asked Bakari, coming from this deep history of protest, what he thought were some tools and necessities, civics, one to one listeners could use when and if they get involved.
Bakari Sellers: [00:18:50] I mean, the number one lesson of activism is you never ask for permission. You ask for forgiveness. And never forget, people were mad, you know, when we were protesting on airports and stopped in stopping traffic and people were like, man wanted to protest, you know, in a more considerate fashion. You know what? That's not the way protest works, man. I was having this conversation with my wife this morning. I was like, protest is messy. It always isn't supposed to make it supposed to make civil society uncomfortable. Go, go. Block a highway. All right, go. You know, go make sure people miss their flights, you know, be, you know, build unrest, but make sure it's nonviolent. But, you know, make sure you have that.
Hannah McCarthy: [00:19:32] But before you write a sign and go outside, you have some work to do.
Bakari Sellers: [00:19:39] Throughout this time, you have to know why you're protesting. You have to know why you're getting involved. I guess if we're doing, you know, kind of a civics 101, I think the first step is trying to figure out why. Why is this purposeful? Why is this meaningful and why is this something that I should do? I don't want people who don't feel like this is necessary to get involved.
Bakari Sellers: [00:20:03] I mean, it's not if you don't feel like it's your struggle or you want to sit on the sideline, that's fine. You know, all black people didn't march for civil rights. You don't have to get involved. But for me, this is I don't believe that I can ever be free if we're not all free.
Bakari Sellers: [00:20:18] And so you have to find out your purpose, which is step one and then step two. You have to be intentional and purposeful.
Nick Capodice: [00:20:24] But what about your civil rights when you're protesting? Is there anything you need to know about what the police can and can't do?
Hannah McCarthy: [00:20:31] Bakari says that that's helpful to know. Yes, absolutely. But he stressed that that is not the most important factor here.
Bakari Sellers: [00:20:41] You should definitely know your rights, but you should also realize that it can go south really quickly with the mixture that we had in our streets today with the mixture of armed law enforcement and military and protesters. So my my I'm telling you all I have to say, when you protest, your number one goal should not be to give an officer a legal lesson on the streets. It should be to make it home safely. Knowing your rights is very important. Making it home safely is much more important.
Nick Capodice: [00:21:13] And I saw Bakari on CNN after the killing of George Floyd, and there's so much pain and anger and exhaustion. And he talked about having to have discussions about all of this with his black children. Did he say anything about this protest and the conversations we're having with our families?
Hannah McCarthy: [00:21:34] Yeah, he did. He had one specific question for all parents.
Bakari Sellers: [00:21:40] You know, are you are you loving my children the same way you love yours? Are you teaching them empathy? Are you teaching them to value our humanity? You know, those are the type of questions as as a country we hate. We've never really asked ourselves. In all of these before you hit the streets. Right. Like before you go out. These are questions you have to ask yourself first at home to prepare yourself to go out in the world to be a hero. For others, you have to be a hero at home first.
Bakari Sellers: [00:22:08] You know, I'll write... One of the lessons my father taught me was that heroes walk among us. And I want to disabuse people of the notion that you have to be a superhero to be a leader. You can be a leader in your own community. You can be a leader in your own church, in your own precinct, in your own neighborhood, your own school, PTA, etc..
Bakari Sellers: [00:22:26] You know, right now in this country, you only have two choices. You can either be racist or anti-racist. It doesn't do you any good to sit at home and say, well, I'm not racist, but. You need to get out and be on the forefront pushing these things. And the leadership that's required right now is one of courage.
Bakari Sellers: [00:22:44] And I do recognize in one of the things we all have to recognize is that there's certain rooms where, Hannah, where you would be a better messenger than I. Right? Although we're coming with the same message, there'll be people who are more inclined or vice versa to listen to me versus listen to you. And we have to be courageous enough to speak to people who have preconceived notions, who are our friends, colleagues that we work with in family. And we have to be ready to confront them with some of the ignorant notions that they may present. That's the only way that we can begin to heal.
Nick Capodice: [00:23:18] Can you spell out what Bakari means by that?
Hannah McCarthy: [00:23:22] I think that what he means is that sometimes a white girl, which I am, is going to be listened to more closely or effectively than a black girl in a certain space. And part of being an entire racist means recognizing that and utilizing it.
[00:23:58]
Nick Capodice: [00:24:29] Today's episode is produced by me Nick Capodice with Hannah McCarthy with help from Jacqui Fulton and Felix Poon. Erica Janik is our executive producer and Maureen McMurray is director of Content. Music in the episode by Chris Zabriskie, Blue Dot Sessions, Lee Rosevere, the Edvin Chamber Orchestra, Meyden and Asura. Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR. New Hampshire Public Radio.
