Free the Jena Six

([Blogger's Advance Coda:  I wrote this in the wee hours of yesterday but have been working and am therefore just now posting it today, a day later (but hopefully not a dollar short!).  It's still hopefully food for thought/discussion, whether here or at my separate blog, Maat's Feather or at MLW - or all three.  So, I'll just post a piece of it here, since it's very long, and if folks want to read the whole thing, then they can head on over.  I know that many eschew my very long diaries and several have complained about them.  But hey, sometimes, there's a lot to be said.)

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

Dr. Martin Luther King, Jr.

This diary is part of the Afrospear campaign (the call for which was made by Bro. D. Yobachi Boswell - hat tip to him!) to raise our voices against the travesty of justice being played out in the case of six teenagers known as the Jena Six.  Why this campaign? Well, the Afrospear press release today makes it plain:

The Afrosphere Jena 6 Coalition "ask that the mainstream traditional media step forward and discharge their duty to provide coverage of this vitally important event to their viewers and readers and act as "the fourth institution" of governmental "checks and balance" that constitutional framers intended the press to be."

I regret only that this diary is coming late in the designated day, a victim of 48-hours of work-crisis I won't bore the reader with.

When I was in law school, my first-year moot court assignment was about free speech, and high school students.  The central issue in our mock case was whether a 1952 Supreme Court case that evaluated the right to free-speech against the Fourteenth Amendment rights of Black folks to live free from public expressions of racial hatred and white supremacy -- Beauharnais v. Illinois -- was still good law that would govern racially-based speech.  In Beauharnais, a white man was convicted under an Illinois libel statute making it a crime to exhibit in any public place any publication which "portray[ed] depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" or which "expose[d] the citizens of any race, color, creed or religion to contempt, derision, or obloquy."

Mr. Beauharnais was convicted because he was handing out what the Beauharnais court quaintly called "anti-Negro literature" on the streets of Chicago.  (I'll let y'all click the link to the case and read some of it for yourself; then tell me if it sounds all that much different than Ron Paul or Michael Richards, 55 years later.)

Justice Frankfurter, writing for a bitterly divided majority, relied on the 1942 case which enunciated the fighting words exception to the First Amendment, Chaplinsky v. United States to conclude that the Illinois statute under which Beauharnais was charged was constitutional, well within the police power of the State to keep the peace following centuries of slavery and white supremacy.  Justice Black, writing the lead minority opinion in Beauharnais (despite having been part of the unanimous ruling in Chaplinsky where race was not an issue,) claimed that the First Amendment was virtually inviolate, such that speech inciting race hatred, like that advanced by Mr. Beauharnais in Chicago, was protected under it without regard to asserted countervailing rights, such as those arising under the Fourteenth Amendment, which were not equally absolute.  And, as a portend of today's High Court reasoning in a variety of contexts involving race, we were told that this was for our own good.  Justice Black's eloquent dissent in Beauharnais ended by warning "minorities" that, in essence, we should be careful what we ask for (the right to be free from public assault on our characters and dignity) because we may get it:

If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:

"Another such victory and I am undone."

Ultimately, because that's what our professors made plain was the "only right answer", those of us who were eager 1L's being exposed to modern Constitutional law in the area of race readily, even if sadly, concluded that Beauharnais was no longer good law, having been impliedly if not expressly overruled by Sullivan v. New York Times.  Yet I wonder from time to time whether our High Court's accidental or purposeful retreat from the interpretations of the First Amendment which balanced free speech against the societal injury of racial fighting words and concluded that the societal harm from certain speech was so severe as to justify public (although not private) censorship -- as affirmed forth in Beauharnais and its predecessor case, Chaplinsky -- is directly correlated with this country's shift, beginning in 1953 with Brown v. Board of Education from an overtly-white supremacist nation to a covert one, as Blacks and whites in this country came more and more into constant contact with each other over the objections of most whites.  With the result that white supremacy was forced under ground by the law which, as set forth in Beauharnais, (which was fatally undermined by Sullivan v. NY Times but has never been expressly overruled by the Supreme Court, much the way that Brown v. Board of Education just was by Parents Involved v. Seattle School Dist. #1), criminalized attacking the character of people of color through "free speech" in public.

I wonder because had Beauharnais in particular not been effectively overruled to make way for "absolute" First Amendment rights -- rights that the story of the Jena Six should confirm even for the staunchest racial utopianist are not rights that all races enjoy equally on the ground in America -- perhaps the "racial free speech" act that began the saga which ended with the criminal case of the Jena Six would have never been necessary.  Or, even if it had been, it certainly might have been nipped in the bud as soon as one of the country's most ancient symbols of racial terror was hung from a tree in Jena, Louisiana last September, 2006.