At times history and fate meet at a single time in a single place to shape a turning point in man's unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama.(1)
Some thirty years ago, five days in March helped to begin a new era for the South, and for the nation. From March 21 to March 25, 1965, thousands of civil rights protesters marched down U.S. Highway 80 from Selma to Montgomery, Alabama, to call attention to the state's systematic disenfranchisement of black citizens. Then as now, Highway 80 was a main regional corridor, connecting Selma and Montgomery with points east and west, symbolically linking Alabama's denial of the right to vote with similar abuses throughout the South. Thus, die Selma march represents a high-water mark for the vindication of speech rights and the democratic values they embody. In the words of the Rev. Martin Luther King, Jr., "Selma, Alabama became a shining moment in the conscience of man."(2)
The social significance of the Selma march is well documented.(3) By focusing national attention on the disenfranchisement of Southern blacks, it prompted Congress to pass one of the most sweeping civil rights laws in history: the Voting Rights Act of 1965.(4) The Voting Rights Act, in turn, led to a dramatic rise in black participation in democratic government, forever altering the shape of politics throughout the South and throughout the nation.(5) Yet the opinion that made the march possible, written by then District Judge Frank M. Johnson, Jr.,(6) has faded from our collective memory with time. In some ways, however, Judge Johnson's opinion in Williams v. Wallace(7) is every bit as remarkable as the Selma march itself. On the thirtieth anniversary of the march, it is fitting and proper to look back at the events that took place in Selma in the spring of 1965, and to reconsider their relevance to our present.
This Essay argues that the Selma march should be - although it plainly is not - as well regarded for its contribution to the development of First Amendment law as to the development of our national morality. Judge Johnson's opinion rests on the principle that the right to protest on public property should, at least in some circumstances, be determined in relation to the wrongs being protested. When deciding whether to permit the four-day march on U.S. Highway 80, Judge Johnson observed that "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."(8) After examining an extensive record, he concluded that the wrongs suffered by the black citizens of central Alabama were "enormous."(9) The scope of the right to protest, he ruled, "should be determined accordingly."(10) In light of the State of Alabama's longstanding and systematic denial of basic civil rights to its black citizens, Judge Johnson issued an injunction that permitted the plaintiffs to conduct a four-day march over fifty-two miles on a major highway.
The proposition that the scope of the right to protest should be commensurate with the wrongs one seeks to protest seems to cut against the grain of contemporary "content-neutral" First Amendment analysis.(11) This Essay argues that it is nonetheless a valid means by which to apportion access to public space. Under current First Amendment "forum analysis," a protest on the scale of the Selma march almost certainly would not be allowed to proceed on a public highway.(12) Given the immense impact of the Selma march on American society, Judge Johnson's Williams opinion suggests that existing public forum doctrine does not adequately protect the rights of citizens to protest.
Yet Judge Johnson's "principle of proportionality"(13) has not received the serious consideration that it deserves. In the three decades following Judge Johnson's decision in Williams v. Wallace, his opinion has frequently been cited for the proposition that local hostility to an exercise of First Amendment rights is an insufficient basis for prohibiting the exercise of the right.(14) To be sure, Williams is a paradigmatic example of the proposition that a "heckler's veto" cannot be permitted to silence otherwise protected expressive activity. Most courts have not been willing to apply the broader proportionality principle that Judge Johnson enunciated, however.(15) And while several law review articles in the late 1960's and early 1970's criticized the proportionality principle in passing, none has undertaken a comprehensive analysis - or a defense - of Judge Johnson's opinion.(16)
This Essay revisits both the Selma march and the legal opinion that made it possible. I argue that the proportionality principle recognized in Williams can help to ensure adequate access to public space when it is most needed - a result largely foreclosed under current First Amendment jurisprudence. Although the specific circumstances that led Judge Johnson to embrace the proportionality principle in 1965 are, thankfully, long gone, the problem of ensuring that adequate public space is available to accommodate meaningful social protest remains. Properly understood and carefully limited, the proportionality principle can continue to help vindicate democratic values today, just as it did thirty years ago in Selma.
Marching to Freedom
Perhaps the most striking (and therefore memorable) moment of the Selma march was its conclusion, when 25,000 people marched up Dexter Avenue to the Alabama state capitol to demand that the state guarantee all its citizens their civil rights.(17) The march ended with a rally on the steps of the capitol, at which Martin Luther King announced to the nation that segregation was "on its deathbed."(18) His rhetorical question "How long?" was both a call to arms and a ringing indictment of Southern society:
I know you are asking today, "How long will it take?" I come to say to you this afternoon however difficult the moment, however frustrating the hour, it will not be long, because truth pressed to earth will rise again.
How long? Not long, because no lie can live forever.
How long? Not long, because you still reap what you sow.
How long? Not long, because the arm of the moral universe is long but it bends toward justice.
How long? Not long, 'cause mine eyes have seen the glory of the coming of the Lord, trampling out the vintage where the grapes of wrath are stored. He has loosed the fateful lightning of his terrible swift sword. His truth is marching on.(19)
These images, these words, remain with us because of their scope and poignancy. The Selma-to-Montgomery march, however, was not simply the product of inspiring leadership and the commitment of the civil rights community to progressive change. It was also the result of thoughtful judicial intervention. Any analysis of the march's significance must therefore include some consideration of the federal judiciary's role in securing for the marchers the right to protest. And in order to appreciate that role, one must first understand the context in which the march arose, and the precise facts on which Judge Johnson relied in reaching his Williams decision.
In King's words, "The Civil Rights Act of 1964 gave Negroes some part of their rightful dignity, but without the vote it was dignity without strength."(20) In 1965, the disenfranchisement of the black citizens of Alabama was nearly complete. Although 15,115 black persons of voting age resided in Dallas County, the central Alabama county of which Selma is the principal city, only 335 (representing 2.2% of all black citizens) were registered to vote.(21) In contrast, 9542 of the 14,400 white residents of Dallas County were registered.(22) This appalling pattern repeated itself throughout other counties in central Alabama's "black belt."(23) In some areas, dead white Alabama residents apparently enjoyed greater access to the ballot than live black ones. In Wilcox County, for example, none of the 6085 black residents were registered to vote, but 2959 of only 2647 white residents were registered.(24)
The reason for this pattern was simple: The State of Alabama maintained a systematic program to prevent its black citizens from voting, relying on devices such as discriminatory application of qualifying tests, discriminatory enforcement of registration rules, poll taxes, and outright racial gerrymandering.(25) "Throughout the state ... all types of conniving methods [were] used to prevent Negroes from becoming registered voters and there [were] some counties without a single Negro registered to vote despite the fact that the Negro constitute[d] a majority of the population."(26) By 1965, this state of affairs had become intolerable to the black citizens of Alabama. The time for change had come.
The horrors of Birmingham in 1963, when Police Commissioner Bull Connor used dogs and firehoses to terrorize protesters who were engaging in a peaceful protest seeking basic civil rights, played no small part in the passage of the Civil Rights Act of 1964.(27) King and his colleagues believed a similar mass demonstration would be necessary to secure the voting rights of Southern blacks. In late December 1964, leaders of the Southern Christian Leadership Conference (SCLC), including King, decided that it was time to implement a new phase of the "Alabama Project," a series of demonstrations designed to wrest the right to vote from reactionary Southern state governments.(28) On New Year's Day in 1965, Jim Bevel of the SCLC met with the Dallas County Voters League to discuss renewed efforts to roll back Jim Crow.(29)
Selma's sheriff, Jim Clark, enjoyed a statewide reputation for "vicious and violent behavior" toward civil rights protesters.(30) The organizers of the Alabama Project chose Selma as the...