“The imprisonment of those seeking social and political change in the United States is as old as its elite-based democracy rooted in slavery, anti-Indian genocidal wars, and ‘manifest destiny.’”
—Joy James1
“We help each other inhabit what is an otherwise uninhabitable and brutal social context.”
—Saidiya Hartman2
“We were never meant to survive.”
—Audre Lorde3
Most students educated in the United States learn at an early age that the right to free speech and assembly are protected rights under the First Amendment of the American Constitution. These rights are heralded as hallmarks of American “democracy” that exist nowhere else in the world. American exceptionalism has been the dominant framework from which to understand these rights, whether they are discussed in the Oval Office, the corporate media, or the American education system. The dominant narrative holds that Americans are the only people in the world who have a “free press” and the right to vocalize their beliefs without persecution, despite the fact that the U.S. ranks 41st in the recent World Press Freedom Index.4 Just like other aspects of American exceptionalism, the free speech and assembly debate has been guided by the economic and political interests of U.S. imperialism rather than the amorphous and abstract ideals of the American democratic project.
American discourse over free speech and assembly has been challenged in the era of the Trump presidency. The U.S. has found it increasingly difficult to justify its claim to “free speech” when the majority of Americans have little trust in a media landscape where just six corporations control ninety percent of all media in America. Some have concluded that Trump’s victory in the 2016 presidential elections reflected a loss of trust in American ruling institutions, like the media, to produce favorable economic and political conditions for an increasingly impoverished, policed, and misinformed population.5 Meanwhile, American progressives have credited the racist ideology of Donald Trump for the emergence of the “Alt-Right,” a supposedly new, more chic, right-wing ideology with roots in neo-Nazi and Ku Klux Klan formations. Figures such as Richard Spencer and Milo Yiannopoulos have sparked large protests at universities across the country. Spencer and Yiannopoulos have claimed leadership in what is coined the “Free Speech Movement” while their opposition has viewed the “Free Speech Movement” as nothing but a cover for neo-fascist tendencies.
The American ruling class has used American exceptionalism to contain the discourse of the “free speech” debate within acceptable parameters. Yiannopoulos and Spencer are indeed white supremacists. They avidly support movements that claim that “white rights” are under attack.6 While the extension of university speaking invitations to Spencer and Yiannopoulos have sparked understandable antiracist sentiment, the American Civil Liberties Union (ACLU) and others have mainly responded by focusing on the application of First Amendment rights, even to the point of defending Yiannopoulos for his right to speak about topics regardless of their racist or bigoted nature. This has created a false dichotomy not uncharacteristic of American exceptionalism. On the one hand, the ACLU has fought diligently against the erosion of civil liberties and sees the persecution of whistleblowers such as Edward Snowden and Chelsea Manning as indicative of a political environment that picks and chooses what is acceptable speech and what isn’t. On the other hand, protesters have drawn a line in the sand over what speech is acceptable, and the Alt-Right’s brand of white supremacy has clearly crossed it.
Both sides of the “free speech” debate have subtly given legitimacy to the notion that the U.S. is designed to protect the freedoms of speech and assembly for all people living within its borders. Antiracist protesters have clearly asserted that “hate” speech should not be considered “free” given the county’s history of white supremacy. This positions the American populace as the primary force that determines what speech and assembly are protected by the U.S. The ACLU has taken the side that the U.S. should defend all speech and assembly due to the dangerous precedent set when certain forms are banned. American exceptionalism remains at the center of both sides of the debate. The American nation-state’s hostile treatment of social movements throughout history has been largely ignored in place of a debate that focuses on how to “fix” the government’s treatment of free speech. However, it is precisely this history that exposes how the First Amendment has never applied to those who have challenged U.S. imperialism in their efforts to build a better world.
Social movements have challenged key narratives that give legitimacy to American exceptionalism, and as an extension, U.S. imperialism as well. To provide context, legal theorist and activist Dean Spade is worth quoting in full:
Social movements engaged in resistance have given us a very different portrayal of the United States than what is taught in most elementary school classrooms and textbooks. The patriotic narrative delivered at school tells us a few key lies about US law and politics: that the United States is a democracy in which law and policy derive from what a majority of people think is best, that the United States used to be racist and sexist but is now fair and neutral thanks to changes in the law, and that if particular groups experience harm, they can appeal to the law for protection [. . .] [But social movements] have shown that the United States has always had laws that arrange people through categories of indigeneity, race, gender, ability, and national origin to produce populations with different levels of vulnerability to economic exploitation, violence, and poverty. These counter narratives have challenged the notion that violence is a result of private individuals with bad ideas and that the state is where we should look for protection from such violence. Conversely, resistant political theorists and social movements have helped us understand the concept of “state violence,” which has been essential for exposing the central harms faced by Native people, women, people of color, people with disabilities, and immigrants. They have exposed that state programs and law enforcement are not the arbiters of justice, protection, and safety but are instead sponsors and sites of violence.7
Two movements that have consistently challenged such patriotic narratives of social change—Black radicalism and labor radicalism—have seen their rights to the freedom of speech and assembly suppressed throughout American history. Co-founder of the Black Panther Party, Huey P. Newton, discussed this history in his doctoral dissertation. Newton outlined the historical context for the suppression of Black radicalism and more specifically the Black Panther Party. “Clear-cut superiority in things social and economic—by whatever means—has been a scruples-free premise of American ruling class authority from the society’s inception to the present,” he writes. “The initial socioeconomic advantage, begotten by chattel slavery,” he continues, “was enforced by undaunted violence and the constant threat of more violence.”8 Whether it be actual or threatened, the state violence that repressed the political speech of the government’s most ardent critics continued well beyond so-called emancipation. The United States’ supposed support of all citizens courageous enough to “speak their mind” appears to be just one more exceptionalist myth. This myth of “free” speech, like so many other myths discussed in this book, obscures the state’s systematic categorization of those who are or are not American, as well as those who are and are not human.
Political repression of certain forms of “free speech” took on new forms during the rise of industrial capitalism in America. Facing immense pressure from labor unrest, the United States began to lay the basis for the development of a secret political police, now known as the “intelligence community.” American intelligence has its roots in the suppression of factory workers in Chicago on strike for an 8-hour workday. After a dynamite bomb was thrown in a labor rally on May 4th, 1886, police forces opened fire on the crowd. An untold number of people were killed or wounded. Socialists and anarchists had their homes raided and searched without warrants. Thirty-one were indicted and four were hanged.9
The First World War, and the Russian Revolution, led the U.S. to formalize its secret police into the General Intelligence Division (GID). By 1919, workers all over the country were engaged in strikes and labor actions for improved working conditions. Black Americans also rebelled over precarious working conditions and the constant threat of violence from white lynch mobs. The American ruling class feared that such “industrial disturbances” would lead to popular sympathy for the socialist character of the Russian Revolution. In a diary entry, Woodrow Wilson made this clear by stating “the American Negro returning from abroad [WWI] would be our greatest medium for conveying Bolshevism in America.”10 The GID collaborated with the Bureau of Investigation to collect information on radical organizations such as the African Blood Brotherhood and the Industrial Workers of the World, which culminated in the infamous Palmer Raids of 1919. Intelligence raids were given legal justification through the passage of the Espionage and Sedition Act of 1917 and 1918. Thousands of “foreign radicals” were arrested around the country and many of them were deported or placed in federal prison on the basis of alleged disloyalty to America’s participation in the First World War. Others, like Emma Goldman and Marcus Garvey, were accused of advocating the overthrow of the U.S. government.
U.S. suppression of domestic radicalism was not only a response to the growth of socialism in the USSR and China but also to the fact that the Communist Party USA and the Black Freedom movement worked together to achieve their common visions for US society. The Communist Party USA established itself as a leader in the fight against Jim Crow racism, especially in their defense of nine young Black men sentenced to death in Scottsboro, Alabama, in 1931 after being wrongfully accused of raping two white women. Six years later, the combined efforts of communists and Black organizations helped reverse their death sentence. Black Americans would swell the ranks of the Community Party as they jointly organized against Jim Crow and the economic discrimination and exploitation of the post-emancipation and post-war eras. In his dissertation, Newton correctly identifies that racial and class cleavages have always hindered the establishment of “democracy” in America.11 These cleavages explain why the United States has claimed to hold a monopoly on the rights to “freedom of speech and assembly” even as it waged a campaign of suppression against both Black and communist organizations. The U.S. state, in the words of Chandan Reddy, is “defined by its freedom with violence.”12
State repression of domestic radicalism based on the manufactured fear of the “Red Menace” continued in the period following the Second World War. The U.S.’s campaign of suppression against communist and Black radicals during this period is generally known as “McCarthyism,” in reference to Senator Joseph McCarthy’s leadership in the Special Committee to investigate un-American activities and propaganda in the United States. This committee, established by Congress, galvanized legal and intelligence resources toward the registration, surveillance (especially through wiretapping communications), deportation, and execution of presumed communists. Two Acts passed during this period, the Smith Act of 1940 and the McCarran Internal Security Act of 1950, provided the legal basis for such severe repression. In her biography of Claudia Jones, Carole Boyce Davies directly traces the genesis of these laws to the deportation of the Black Trinidadian woman who also happened to be a leader in the Communist Party.13 The laws forced communists to register with the Attorney General and broadly interpreted what it meant to advocate, distribute, and organize the “overthrowing or destroying of any government of the United States.” Unfortunately for Claudia Jones, she fell victim to this witch hunt which was a clear and “deliberate attempt by the U.S. government to erase her from U.S. history.”14
Atrocities such as the deportation of Jones and the execution of Jewish communists Ethel and Julius Rosenberg were no aberrations but rather part and parcel of a general policy of repression that characterized the U.S. at the time. Cyril Briggs, another Black communist and founder of the African Blood Brotherhood, found himself subpoenaed to testify in front of the House of Un-American Activities Committee, or HUAC. His testimony summarized the truly abhorrent and bankrupt character of the repression that was so ardently defended by the U.S.:
Like numerous others hauled before HUAC, Briggs refused the role assigned him in what amounted to little more than a congressional show trial. Rather than play the hapless Negro seduced by a foreign ideology that he could neither fully comprehend nor resist, or cower before HUAC as so many others had, Briggs expressed his outrage at “being interrogated by a committee whose members include out-and-out white supremacists and . . . that during its 20 years has never once investigated the Ku Klux Klan.”15
Briggs used the public hearing to expose the illusion of American exceptionalism and the reality of U.S. imperialism. Cyril’s testimony to HUAC was a damning critique of American exceptionalism and innocence. He essentially revealed that the reason white supremacists were never brought before the committee is that there’s nothing un-American about the KKK. The U.S. has proved itself exceptional in granting white nationalist terror groups such as the KKK legal immunity while bearing the full weight of American imperial repression down on Black Freedom activists.
Such hypocrisy only became more apparent after the McCarthy period formally ended in the late 1950s. The intense repression of radical political activity continued into the 1960s and 1970s. With the Communist Party severely weakened, the FBI, led by J. Edgar Hoover, waged a brutal war of suppression against the Black Freedom movement and its allies. The war came under the auspices of the FBI’s Counterintelligence Program (COINTELPRO) and brought local police departments, federal intelligence agencies, and the executive branch of the U.S. together in a coordinated effort to “expose, disrupt, misdirect, discredit, or otherwise neutralize the activities of black nationalist hate-type organizations and groupings.”16
It is important here to note that COINTELPRO often described “black nationalist” leaders and groups as criminals, terrorists, and a threat to the security of society. This allowed the various arms of the COINTELPRO apparatus to repress the Black Freedom movement in a similar manner that “McCarthyism” criminalized any association with the Soviet Union or communism as a pretext for the suppression of the Communist Party USA. The FBI wiretapped and collected information from people like subversive cartoonist Jackie Ormes,17 noteable so-called “pacifist” civil rights leaders like Ella Baker,18 W.E.B. Du Bois,19 Martin Luther King Jr., and their affiliated organizations such as the Southern Christian Leadership Conference (SCLC). It is quite telling that in 1999, a Memphis jury concluded that Martin Luther King’s assassination was a conspiracy that implicated many American governmental agencies.20 The FBI’s willingness to suppress so-called nonviolent Civil Rights leaders and organizations reveals that “free speech” and “assembly” can only come at the expense of the Black Freedom movement, regardless of the peaceful means the movement employs. Sadly, Black radical activists had to learn the hard way what American liberty truly means; namely “that the degree of freedom they enjoy is exactly proportional to the actual threat they represent.”21
It was the socialist-oriented Black liberation movement in general and the Black Panther Party in particular that faced the harshest repression from COINTELPRO. This prompts some scholars to describe COINTELPRO as the “state’s record of terror with impunity against black people, and the accompanying changing performative dynamic of whiteness whereby the self-image of civil society comes to require a repression of its sadistic antiblackness in favor of an ostensible race neutrality.”22 Mainstream and ruling class observers, especially liberal ones, often equate the Black Panther Party with the Ku Klux Klan. Despite lynching thousands of Black Americans on the basis of racial animus since the late 19th century, Klan leaders and members have never faced persecution by the American nation-state in any significant way. The Black Panther Party, on the other hand, was a radical Black organization that formed Black community patrols of the police and free breakfast programs for Black children. Black Panther leaders such as Huey Newton were inspired by Malcolm X and wanted to organize the energy of the Black rebellions that erupted in cities across the country into a movement for full Black emancipation. They were inspired by the anti-colonial and socialist revolutions in Vietnam, China, and Mozambique and actively worked to make the Black Panther Party an anti-imperialist organization. While the Party called for the restructuring of American society toward these ends, never once did it call for violence unless it was required for self-defense.
The FBI saw things differently. It employed the full force of COINTELPRO to destroy the Black Panther Party. In 1969, J. Edgar Hoover described the Black Panther Party as the “greatest threat to the internal security of the country,” citing its affiliations with Marxism and so-called violent confrontations with police officers as the primary reason.23 Yet Hoover’s own internal FBI memo reveals that it was really the Black Panther’s Free Breakfast Program for Children that so threatened the security of the country.24 Because the program helped increase the influence of the Panthers in the Black community, it was harder for the government to neutralize them. As a result, the FBI declared war. Dozens of Black Panther Party leaders were assassinated, including John Huggins and Alprentice Bunchy Carter in Los Angeles, Fred Hampton and Mark Clarke in Chicago, and Bobby Hutton in Oakland. Numerous others served lengthy prison sentences. Police and intelligence operations were organized to raid Party offices, including the infamous 6-plus-hour shootout on 41st and Central, Los Angeles, in 1969. The history of U.S. repression against the Black Panther Party is now available to the public, thanks to publications like Black Against Empire and Huey P. Newton’s doctoral dissertation.25
The pervasiveness of American exceptionalism in all aspects of American political, economic, and cultural life has set the stage for the virtual disappearance of this history from public memory. Indeed, many Americans believe that the nation they live in presents the only example around the globe where one can “speak their mind” and pursue their interests without repercussions. Few are aware of the severe repression that radical political organizations—especially Black organizations—faced when they attempted to exercise their right to “free speech” and “assembly” in America. Even when knowledge of such repression exists, it is usually narrated as something unfortunate or tragic that happened back then. Yet sixteen Black Panther Party members remain in prison for political purposes, and Assata Shakur, a member of the Black Panther Party and Black Liberation Army, lives in exile in Cuba with a $2 million bounty on her head. The Jericho Movement lists dozens of political prisoners who face long-term sentences due to COINTELPRO, including American Indian Movement leader Leonard Peltier. COINTELPRO may no longer be in operation but its violent legacy lives on in the present day.
That is to say that the narrow debate about “free speech” characteristic of the Trump era has reinforced the erasure of this legacy by conforming to the logic of American exceptionalism and innocence. The terms of the debate are set by the presumption that the U.S. was designed to protect the right to “free speech and assembly” of all. Just exactly what and who defines these rights is often missing from the conversation. The United States is the most powerful imperialist state in history, ruled over by a capitalist class that has sought to maximize profit, power, and pleasure from the infrastructure of the state and economy. Policing and surveillance are tools of state power wielded in the interests of this class. As Nikhil Pal Singh explains:
The specific importance of police power revolves around its ongoing links to colonial and settler colonial methods and relationships including extermination and population transfer, but as importantly its conservation within and utility for the machineries of value creation, capital accumulation, and the economies of violence that these machineries require and develop.26
State repression of the communist movement and the Black Freedom movement, as well as any movement that aligned with them, was thus of utmost importance toward the conservation and subsequent expansion of the American imperial system.27 A distinction must be made, then, between rights granted to the rulers of American society and those granted to the oppressed. The ruling class and its white American supporters never granted Black America any rights it was bound to respect. Singh argues this when he quotes “Founding Father” Benjamin Franklin: “The majority of Negroes are of a plotting disposition, dark, sullen, malicious, revengeful, and cruel in the highest degree,” Franklin wrote. And although he is more famously remembered for sympathizing with the abolitionist movement, “Franklin doubted,” in his own words, “that ‘mild laws could govern such a people.’”28
Criminalizing Black existence has justified racial and economic oppression since the country’s inception. Black resistance has equally been criminalized. The notion that Black Americans can neither rule nor exist without white supremacist state force has guided the development of U.S. imperialism throughout history. In his book, American Inquisition: The Hunt for Japanese American Disloyalty in World War II, Eric Muller discusses how policing and surveillance practices seek to enforce a particular kind of patriotism and attachment to the nation-state. “The government’s various loyalty screening programs in World War II bequeathed us many lessons,” he writes. “Their most important lesson, however, is also their most basic: Loyalty is too ephemeral and ambiguous a criterion to support a national security program, especially in a racially or ethnically charged setting. When government officials on a loyalty inquest screen citizens for hidden biases and motivations, they are likeliest to find their own.”29 This has become all the more salient in the current era of American economic decline and crisis. The technologies of repression once reserved for racially oppressed and insurgent radical movements have been transformed into worldwide instruments of war that affect the entire population. In the words of P. Khalil Saucier and Tryon Woods, “the only law is the law of racial elimination.”30
Barack Obama’s presidency was a byproduct of the desperate need for the American ruling class to both conceal and intensify the policies that produced such a condition. The Obama Administration raided Occupy Wall Street Movement encampments and used the FBI to conduct surveillance on the Black Lives Matter movement. American intelligence agencies, most notably the National Security Agency (NSA), were given free rein to expand their surveillance dragnet to include every call, text message, and digital communication made by as many people worldwide as possible, including leaders of the “free world” such as Angela Merkel. The Obama Administration presided over a full-scale erosion of civil liberties through a record shattering use of the Espionage Act to prosecute whistleblowers of government misconduct.31 Legal precedent was given to the presidency to indefinitely detain and even murder U.S. citizens anywhere in the world, culminating in the drone strikes that killed two American citizens in Yemen in 2011. Moreover, under Obama, a record number of “illegal” immigrants were deported, despite the administration’s patently false pretenses that it was targeting “felons, not families.”32
Black Americans remained the inheritors of the harshest forms of repression from prison and police departments during the Obama era. Yet, the country saw to it that Obama erect a police state that labeled almost every person and nation a potential “terrorist.” The U.S. developed a massive wall of repression as a means of self-preservation amid the deteriorating conditions of not only Black Americans but also working Americans generally. It is from such a vantage point that the questions of “free speech” and “assembly” must be approached. Far from a land of tolerance and “free speech,” the U.S. has developed into the most formidable police state in human history. It doesn’t matter what politicians, the corporate media, and most law schools teach us about the police and judges working to “serve and protect.” As Claudia Rankine cautions us, “the justice system has other plans.”33
American exceptionalism and American innocence tell us that the U.S. is neither a police-state nor an imperial system, but rather a nation that delivers ”democracy” and “free speech” regardless of its flaws. Police state measures such as mass surveillance,34 incarceration, and the repression of social movements are advertised as necessary for the preservation of “national security.” Yet poor Americans, Black Americans, “illegal” immigrants, and global “terrorist threats” are sections of the population, or classes, that Lisa Marie Cacho refers to as those deemed “ineligible for personhood.”35 Such populations, she writes, “are excluded from the ostensibly democratic processes that legitimate U.S. law, yet they are expected to unambiguously accept and unequivocally uphold a legal and political system that depends on the unquestioned permanency of their rightlessness.”36 The rights to “free speech and assembly,” then, are not “universal” but rather the exclusive property of the white and the rich, and are only respected so long as one fits the right profile and accepts the system as it is currently constituted. In other words, the simultaneous “ascent of rights and U.S. global power has given rise to a fundamental contradiction: the United States champions the rights of all and simultaneously renders people rightless.”37
Debate over the questions of just whose speech and whose assembly are protected by the U.S. should not fall entirely into the hands of right-wing white supremacists or liberal gatekeepers of American exceptionalism. Many white nationalist groupings want a “free speech” movement to ensure the primacy of whiteness in American discourse in a period where white racial superiority is already firmly implanted in state policy. Liberal gatekeepers of American exceptionalism seek to counter this movement by upholding the sanctity of “free speech and assembly.” The promoters of the ideology, mainly establishment liberals and conservatives, say nothing about how the system of U.S. imperialism is designed to suppress free speech and assembly rights for radical social movements or how such suppression is rooted in the white supremacist and imperialist character of the American nation-state itself.
So while it is important to condemn “hate speech” and racist rhetoric, perhaps it is more important to begin imagining a world without the police state, a state that the U.S. has fortified.38 As Kristian Williams shows in his book, Our Enemies in Blue: Police and Power in America:
Laws have been passed, and interpreted, and enforced in ways designed to maximize the control White people exercise over people of color. But they have also been broken, and ignored, and under-enforced with the same aim in mind. When the demands of White supremacy and the requirements of the law have conflicted, the maintenance of White supremacy has almost always appeared higher on the police agenda. Police illegality and complicity in White terror continue in an unbroken sequence from Reconstruction to today.39
The American police state has become normalized in a system where repression, ironically, is often framed as necessary to preserve the very rights that the majority of the population—especially Black America—is being asked to sacrifice. The history of U.S. state repression of social movements and its current manifestations in the form of political prisoners, deportations, and reductions in civil liberties show that the U.S. cannot and will not protect the “free speech” of those on the margins of society. We must imagine a new social order that protects the political and economic rights of the exploited and oppressed.40 This will require that more Americans understand the function of the American police state. That function is to protect the property and wealth of elites at the expense of the poor, the oppressed, and the movements that point toward a different, more egalitarian path for humanity.