In 1954, the U.S. Supreme Court ruled in Brown vs. Board of Education that segregated schools were illegal, a landmark decision that helped fuel the civil rights movement over the next 15 years.

Seventeen years earlier, in 1937, the stage was set for that decision by another important case that has been largely overlooked for its significance, according to a new book by a University of Wisconsin-Stout professor.

Tim Shiell devotes about one-fourth of his book, “African Americans and the First Amendment,” to the case of Angelo Herndon, a black man and a Communist Party organizer who was arrested and charged in 1932 in Atlanta with insurrection after leading rallies and distributing party information.

Herndon was convicted in 1933 after a racially charged trial and sentenced to 18 to 20 years on a prison chain gang, although the prosecution argued for the death penalty.

It took four years, including several more defeats in court, but in 1937 a 5-4 vote by the U.S. Supreme Court, in a race-neutral approach to the case, ultimately ruled in favor of Herndon in Herndon vs. Lowry, saying his First Amendment rights were violated.

“It was the first time the court protected a black man’s speech and the first time it struck down a southern speech restriction. It provided a precedent for future First Amendment decisions that continued to unite racial equality and liberty during the civil rights era,” Shiell said.

The Herndon decision essentially said it’s legal for Americans to protest peacefully, a key to the forthcoming civil rights movement.

Equal rights only in theory

The Herndon case underscores the reason for Shiell’s book, the subtitle of which is “The Case for Liberty and Equality,” or how he believes First Amendment rights are the foundation for equal treatment of all Americans.

That seldom has been the case in American history. Often, and especially in the case of African Americans, constitutional free speech and other rights have mostly applied to the white majority. Equality has been, essentially, a myth throughout much of American history.

In other words, First Amendment Rights don’t guarantee anything.

Shiell argues, however, that since the Herndon case the courts slowly have been aligning First Amendment rights with the laws of the land. As a result, after nearly 250 years America is closer to finally becoming a government for the people — all people.

“The modern era has really been since the 1970s. If there’s a criticism (in the book of the courts), it’s how long it took for these rights to be respected and enforced,” Shiell said, noting that the courts and others believed the Constitution did not apply to state law.

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Shiell teaches philosophy and is director of UW-Stout’s Center for the Study of Institutions and Innovation, which held Free Speech Week Oct. 21-24.

The book was published in September by SUNY Press, from the State University of New York, part of the SUNY Series in African American Studies.

Liberty and equality go together

Shiell spent four years researching and writing to make the case for liberty and equality, mainly because some people see them as diametrically opposed, as liberty or equality. The problem is that free speech can serve as the foundation for hate speech.

“There are people who get away with verbal murder and hide behind the First Amendment,” said Shiell, whose first book in 1998 was about campus hate speech.

Shiell writes in his new book that well-intentioned attempts to limit hate speech — in effect our freedoms — between 1880 and 1930 by African-Americans, Jews, Irish and others backfired in the long run.

The most effective way to bring about change is to alter public opinion organically through those same freedoms — speech, press, organization, he said. He cites the civil rights movement and the LGBTQ movement as examples of the courts being influenced by public opinion.

“You can’t count on the government being on your side, so you have to use your power to convince others,” he said.

Along with the Herndon case, the book’s chapters are American Apartheid, dating to colonial times; the Civil Rights Movement, showing the historical progression of First Amendment rights; and Hate Speech.

Shiell, who researched more than 300 court cases, sees people like Herndon as heroes not just for minorities but for all Americans. “The rights we take for granted today, a lot of people had to fight really hard for — for a lot of years. A lot of the progress in First Amendment rights comes from the struggles of African-Americans and other minorities,” he said.

He thanked a colleague, Associate Dean Bob Zeidel, and six UW-Stout students for feedback on his manuscript and said a Faculty Research Grant helped provide writing time in spring 2017 to finish the book.

Shiell noted that only a month after its release the book already is in libraries in the U.S., Canada, the United Kingdom, Australia, Germany, Netherlands, Israel, Nigeria, United Arab Emirates and Switzerland.

UW-Stout is Wisconsin’s Polytechnic University, with a focus on applied learning, collaboration with business and industry, and career outcomes.

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(13) comments


Will equality ever really happen when money is the loudest speech of all?

Will conservative wealth power really ever give up that power to allow people more freedom?

Why are?

Will equality ever really happen when victim hood and identity politics is the loudest speech of all?

Will liberals quest for power destroy Western Civilization by advocating for something that the rest of the world doesn't believe in?


What is "victim hood and identity politics?"

What "liberal quest for power" will destroy "Western Civilization?"

What does the rest of the world believe in?


Why are? must be a conservative that is upset about equality and justice for all.

Why are?

Why is precedent assuming my politics? Are you going to assume my gender too?


Are you upset by "victim hood and identity politics" or the "liberals quest for power ?"

Why are?

Do you approve of liberals use of victim hood and identity politics in their quest for power?


Do you approve of African Americans use of victim hood to gain more freedom?

Do you approve of African Americans using identity politics to gain the same First Amendment freedom enjoyed by others?

Are you inspired by the litany of trolling and insults published by Junior?

Why are?

".......to gain more freedom?" How are they not free? Are they slaves? What freedom do they not have in America?

All American citizens have First Amendment Rights. Are you insinuating that African Americans aren't citizens?

Why do you think that Martin Luther King Junior is a troll and his published works to be insulting?

Are their any other civil rights leaders you would like to attack?


Why is Why are? not pushing the "victim hood" or "identity politics" when the question places real identities in those coded terms he uses? Does Why are? share a concern about the victimhood complex in the left that his compatriot Donald Trump Junior has?

How many people know that the "western civilization" term is code of white nationalism?

Why are?

Question asks questions that suggest that African Americans are both non-citizens and slaves.

When this is pointed out, Question doesn't clarify or deny it. Instead, Question deflects by assuming my beliefs and attempts to tie them to a public figure.

Why does Question introduce normal words and language as "code" and "coded terms"?

I wonder why?

Is this some kind of test?

Is Question trying to find out If I am some kind of a kindred spirit?

Is Question really a wolf (racist) in sheep's (liberal) clothing?

Is this a recruitment tactic for Question's extremist group?

Well I'm here to tell you NO! I will not be part of your racist and bigoted extremist group. You go back to your KKK (or whichever) meeting and tell them that you failed. I will never believe the same hateful things that you do.


"We need to stop calling them liberals and begin referring to them as exactly what they are: American communists, that wish to partake in the destruction of western civilization."




"... The moral degradation, in fact, has been multiple -- financial corruption, political corruption, and philosophic or ideological corruption. Each has reinforced the others. When money is king, politicians get bought on a truly grand scale and philosophy bows to avarice.


Meanwhile, of course, corrupted thinking is pushing the argument that giving a check to a candidate amounts to protected political speech under the First Amendment of the U.S. Constitution."


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