COLUMBIA, S.C. — A South Carolina woman who participated in a non-violent Black Lives Matter protest was sentenced to four years in prison, a punishment the ACLU of South Carolina argues is a clear violation of her constitutional rights.
In 2020, protester Brittany Martin was arrested five days after a demonstration and later convicted—while pregnant—of Breach of Peace of a High and Aggravated Nature (BOPHAN).
Her sentence is reportedly the longest ever recorded for a BOPHAN conviction, exceeding the sentence in a past case, State v. Simms, in which the defendant punched a man unconscious, leading to the man’s death by vehicular trauma. Simms received three years; Martin received four years for delivering a political speech during a protest.
After being released from prison on Nov. 27, 2024, Martin filed a petition for a writ of certiorari, asking the U.S. Supreme Court to hear her case. She is represented by the ACLU of South Carolina and expressed gratitude for both the legal organization and her family’s support.
The ACLU maintains that Martin’s sentence for a non-violent protest is “an outrage and a clear violation” of her constitutional rights, specifically the First Amendment. The group also argues the conviction violated her Sixth and Eighth Amendment rights to a unanimous jury verdict and protection from cruel and unusual punishment.
Meredith McPhail, staff attorney for the ACLU of South Carolina, said that challenging the conviction is critical “not only to clear Ms. Martin’s name and record, but also to uphold the principles of the First Amendment that protect all South Carolinians.” Martin called her legal fight a symbol of the “battle to exercise and uphold our constitutional rights,” and said the Supreme Court’s review could deliver justice and reaffirm Americans’ free speech rights.
During her incarceration, Martin gave birth to her daughter, an event that sparked national outrage. Advocacy groups including Charleston Black Lives Matter, Black Voters Matter, Black Lives Matter Grassroots, and the Black Liberation Fund mobilized to support her case and amplify her petition.
The ACLU reports that, while in custody, corrections officers forcibly cut Martin’s hair and held her in prolonged isolation. In 2022, while she remained incarcerated, her 18-year-old son, Courtney, was murdered in Waterloo, Iowa.
“I didn’t even get a chance to grieve my son,” Martin said. “I had to have my baby in prison. If anybody is supposed to give up, it’s me, but I’m staying strong.”
On April 19, 2023, the South Carolina Court of Appeals received Martin’s appeal from Sumter County. Her legal team raised five key constitutional violations.
They argued that Martin’s conviction should be vacated under the First Amendment, which protects speech that can “stir people to anger, invite public dispute, or bring about a condition of unrest,” citing Edwards v. South Carolina, 372 U.S. 229 (1963). They also contended that the trial court failed to instruct the jury properly on the definition of BOPHAN and its intersection with free speech protections.
The appeal further stated that the law itself—BOPHAN—is unconstitutionally vague, violating the Fourteenth Amendment’s due process requirement that criminal laws be clearly defined. Her attorneys also claimed that the trial court failed to ensure a constitutionally required unanimous verdict, and that the four-year sentence constituted cruel and unusual punishment under the Eighth Amendment.
Despite these arguments, the court of appeals rejected Martin’s appeal, stating her arguments were not properly preserved at trial. However, her petition to the U.S. Supreme Court requests that the justices review her case and clarify the role of procedural rules in safeguarding constitutional rights.
According to the ACLU, the high court is currently considering whether it will take up the case.
