Op-Ed: Could a Selma-like protest happen today? Probably not

To mark the 50th anniversary of the Selma marches of 1965, we will replay the inspirational words of the Rev. Martin Luther King Jr., recount the courage of the marchers in the face of police brutality and recall the shock to the conscience that led to the passage of the Voting Rights Act. But we also should consider carefully an important question: Could a march like Selma happen today?

The 52-mile march down U.S. Highway 80 on March 21-25 required more than determination; it required a court order. After Alabama State Troopers and local sheriff’s deputies attacked the 600 people crossing the Edmund Pettus Bridge on “Bloody Sunday,” March 7, the Southern Christian Leadership Conference went to federal court on Monday. They asked for an immediate injunction ordering Alabama’s state officials to permit the march to proceed. They didn’t get it, but U.S. District Judge Frank M. Johnson Jr. scheduled a hearing for later that week. In the meantime, he ordered the SCLC not to march from Selma to Montgomery. King was under tremendous pressure to proceed, even if doing so might land him in contempt of court. In the end, King respected the court’s order and so on Tuesday marchers crossed the Edmund Pettus Bridge — but then returned to Selma.

After a four-day hearing, in a groundbreaking ruling Johnson held that the march could proceed. The protest march on Bloody Sunday, he wrote, represented the exercise of the rights of assembly, petition and speech. “It seems basic to our constitutional principles that the extent of the right to assemble, demonstrate, and march peaceably along the highways and streets in an orderly manner should be commensurate with the enormity of the wrongs that are being protested and petitioned against,” he reasoned. “This is particularly true when the usual, basic and constitutionally-provided means of protesting in our American way — voting — have been deprived.”

The ruling opened the way for hundreds to march down U.S. 80, culminating with a 25,000-person protest in front of the Alabama State Capitol. Speaking there, King famously asked, “How long?” and answered “Not long. Because the arc of the moral universe is long but it bends toward justice.” Selma still represents the pinnacle of the use of peaceful protests to secure civil rights and reform the government.

Today, it would be impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway. Under contemporary legal doctrine, the Selma protests would have ended March 8, 1965.

The shift happened over time. In 1966, for example, the U.S. Supreme Court ruled in favor of a silent protest against segregation in a Louisiana public library.

“There was no disturbance of others, no disturbance of library activities, and no violation of any library regulations,” observed Justice Abe Fortas. Because the state failed to show that the use of the library for protest was incompatible with its use as a library, the 1st Amendment required the state government to permit the peaceful protest.

Starting in the 1970s, however, the federal courts began rolling back this idea. A series of rulings erected what is known as the public forum doctrine, which lets a city, state or the federal government decide whether public property can be used for 1st Amendment activities. It also means that if courts do not designate a place a “traditional public forum,” government may forbid its use as a site of protest altogether.

Under this doctrine, the federal government has completely banned large protests at Mt. Rushmore and the Jefferson Memorial. “National memorials are places of public commemoration, not freewheeling forums for open expression, and thus government may reserve them for purposes that preclude expressive activity,” the District of Columbia Circuit Court of Appeals concluded in holding that the Jefferson Memorial is not a public forum in 2011.

Even in traditional public forums, government may strictly regulate the time, place and manner of speech activity. The National Park Service, for example, has created “free speech areas” and limited protests to them. Predictably, the federal courts have sustained this policy.

Likewise, local, state and federal governments have banned dissent near major political events, such as the presidential nominating conventions.

Protesters are relegated to “designated speech zones,” sometimes blocks or miles from the venue. The federal courts have sustained such regulations as justifiable security measures. The purpose and effect of these regulations, however, is to render the protesters invisible.

To be sure, governments permit large organized marches when they want to. But the more pertinent question is this: Must a government allow large-scale protests when it would prefer not to?

One need look no further than Ferguson, Mo., to see how far we have curtailed the use of public property for “petition by protest” since Selma.

The protests following the shooting of Michael Brown were initially peaceful, but faced heavy-handed police tactics, including tear gas, rubber bullets, Tasers, flash grenades and snipers. Moreover, local officials imposed a requirement that the protests be “respectful” and police implemented a “five second rule” that protesters keep moving and not congregate.

A federal district court ultimately intervened, finding that local and state officials had violated the 1st Amendment — but not until many weeks after the violations had taken place. And even then most other protest restrictions and police tactics were allowed to stand.

Judge Johnson’s opinion on the Selma march, in Williams vs. Wallace, advances the 1st Amendment’s core values more effectively than today’s anemic public forum doctrine. As he saw it, government has a constitutional obligation, grounded in the 1st Amendment, to make public property available to protesters. The burden of justifying any limits on protest speech should always rest squarely on the government. What’s more, the federal courts should require government to tolerate speech activity unless it is fundamentally incompatible with the property’s everyday use. Finally, speech activity that seeks to petition the government for a redress of grievances should enjoy the strongest claim to mandatory access to public property.

As we remember the epic marches in Selma and the legal reform they accomplished, we should also acknowledge how the courts have since hobbled our right to stage a protest of such magnitude. To truly celebrate the legal legacy of this civil rights milestone, we should embrace Selma’s main lesson: Taking to the streets and other public spaces in protest is central to our democracy.
Ronald J. Krotoszynski Jr., a professor at the University of Alabama School of Law, served as a law clerk to Judge Frank M. Johnson Jr. in 1991-92. He is the author of “Reclaiming the Petition Clause.”

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