First Amendment Protections for “Good Trouble”

April 25, 2023

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The more things change, the more they stay the same. This unfortunately is true with respect to the efforts of civil rights activities and the response of the dominant power structure in the United States. 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 also 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).

This is a forthcoming paper. You can currently access it through GW Law Faculty Publications & Other Works.