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Ronald J. Krotoszynski Jr.: Courts would never let Selma marches go ahead today
March 15, 2015
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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 US 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” on 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 US District Judge Frank M. Johnson Jr. scheduled a hearing for later that week. In the meantime, he ordered the leadership conference 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 US highway. Under contemporary legal doctrine, the Selma protests would have ended on March 8, 1965.

The shift happened over time. In 1966, for example, the US Supreme Court ruled on 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 federal court 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.

Tribune News Service

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