By Ryan Cohen
As a Millennial, I have few memories of protests shaking the foundations of my world the way Selma did in 1965. That’s not because there are not injustices in society, or people determined to speak out against them. Perhaps it’s partly because my generation has found a new public forum in the Internet. But more importantly, it’s because policy and jurisprudence have gradually whittled away our right to peacefully protest.
Student protests against rising tuition at University of California schools. Occupy Wall Street. Black Lives Matter. These were my glimpses of the right to assemble, each accompanied by images of silencing. Students met with pepper spray at UC Davis and batons at Berkeley. Occupiers kicked out of public parks, trapped on the Brooklyn Bridge, and being closely surveilled by the government. Reporters unlawfully arrested for filming the harsh police tactics that met Ferguson protests. Just this week, the Department of Justice issued a report concluding that Ferguson police have been unlawfully arresting protesters.
“We saw First Amendment violations on steroids in August, especially during protests,” Chris King, managing editor at the St. Louis American, told Al Jazeera America.
In many ways, these tactics are similar to those faced by American protesters since the founding of our country, including the Selma protesters fifty years ago yesterday. But since Selma, limitations on the right to peaceful assembly have been institutionalized through legal jurisprudence, which is perhaps more invidious.
Ronald J. Krotoszynski, Jr., writing for the Los Angeles Times, argues that the five-day March from Selma to Montgomery, which required the protection of a federal court order, would never be permitted under current legal doctrine. Since the Supreme Court began to develop the public forum doctrine, which allows for limitations of protests outside of traditional public forums, courts have slowly carved holes in assembly protections.
In Oberwetter v. Hilliard (D.C. Cir. 2011), for example, the District of Columbia Court of Appeals held that places of public commemoration, such as the Jefferson Memorial, are not “freewheeling forums for open expression,” and that the government may regulate speech there.
Federal courts have upheld government limitations on speech even within traditional public forums. For example, courts have allowed the National Park Service to confine protests to indicated “free speech areas.” See, e.g., United States v. Sued (S.D.N.Y. 2001). They have allowed cities to confine protests to areas far from the sites of major political events, even when the designated areas felt like “internment camps.” See Coal. to Protest Democratic Nat. Convention v. City of Boston, (D. Mass. 2004) aff’d sub nom. Bl(a)ck Tea Soc’y v. City Of Boston (1st Cir. 2004).
In spite of these limitations, we have still seen some large and powerful demonstrations, including the Millions March, which drew around 10,000 people to the streets of D.C. and New York to protest racial bias. But by allowing peaceful protest to be met with batons, pepper spray, or legal limitations, we lose out on opportunities to dream together about the kind of nation we aspire to be.
As President Obama said yesterday in his speech on the Edmund Pettus Bridge, “Selma shows us that America is not a project of any one person. Because the single most powerful word in our democracy is the word ‘We.’ . . . Oh, what a glorious task we are given, to continually try to improve this great nation of ours.”
When we inhibit peaceful protests, we end up with Bloody Sundays. But when we protect peaceful protests, we are forced to have the difficult conversations about the challenges facing our nation. We engage in the process of self-criticism and social change, which is what our nation is built upon.
No words can illuminate the power of peaceful protest more than those of Martin Luther King, Jr. on March 25, 1965—when the Selma protesters reached Montgomery:
“Somebody’s asking, ‘When will wounded justice, lying prostrate on the streets of Selma and Birmingham and communities all over the South, be lifted from this dust of shame to reign supreme among the children of men?’ . . . Not long, because the arc of the moral universe is long, but it bends toward justice.”