Bhagwat on Judge Johnson and the Kaleidoscopic First Amendment @AlaLawReview

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing Judge Johnson and the Kaleidoscopic First Amendment in the Alabama Law Review. Here is the abstract.

Judge Frank M. Johnson, Jr.’s decision in Williams v. Wallace, in which Judge Johnson issued an opinion which permitted the Selma March to proceed despite unremitting opposition from local and state authorities, is now a settled part of American history. Furthermore, today few question the underlying correctness of the decision. But in fact, seen in the wider context of modern First Amendment jurisprudence, Judge Johnson’s decision was remarkable. Just how remarkable it was becomes apparent when it is contrasted with a decision of the United States Supreme Court just a year later, Adderly v. Florida, in which the Court upheld the trespass convictions of participants in a civil rights protest on the grounds of a county jail. Adderly, authored by that most vociferous defender of civil rights and liberties Justice Hugo Black, demonstrates that the modern First Amendment has rarely been interpreted to require access by protestors to public property when that access might interfere with its regular uses. Yet in Williams Judge Johnson authorized a 54 mile long march by 25,000 protestors along a public highway! Why did Judge Johnson rule as he did, in the face of precedent and judicial norms? Part of the answer has to lie in the unique back-history of the March, which included stunning acts of violence and brutality on the part of officials and the KKK. But there was a constitutional insight driving Judge Johnson’s decision as well, one that Justice Black missed. The opinion in Williams v. Wallace demonstrates an understanding of two fundamental points about the First Amendment that the modern Supreme Court (beginning, in a very meaningful way, in Adderly itself) has forgotten. The first is that the First Amendment protects multiple political rights, not just free speech. The second is that these rights, though related, are distinct and cumulative. More specifically, Judge Johnson recognized that what was at issue in the Selma March was not just free speech, but also association, assembly and petition, and that these rights fortify one another. In other words, Judge Johnson recognized the kaleidoscopic nature of the First Amendment in its relationship to citizenship and democracy. That is an insight that should not have been lost, and which we would do well to recover today.

Download the article from SSRN at the link.