What is the Real Takeaway of this Fine Op-Ed on Free Speech and Selma?

My colleague Ron Krotoszynski has a fine op-ed today on the First Amendment and the Selma-to-Montgomery march. I have put some key excerpts after the jump. The basic message is that modern free speech doctrine would render such a march unlikely, because in the decades since then the Court has developed a proliferating public-forum doctrine that enables courts and governments to do less to protect and "advance[ ] the First Amendment's core values." (The op-ed uses "1st," not "First," but I consider that a dreadful editing choice on the part of the newspaper.)

Judging by, e.g., Facebook reactions, I assume the takeaway for most people reading this op-ed will be something fairly conventional, along the lines of "free speech is good," "public forum doctrine is bad," and "the courts have been less protective of free speech--real free speech--since the Warren Court era." I assume somewhere in the mental picture painted, many will think of Ferguson, which Ron discusses very powerfully in the full op-ed, but Citizens United too. 

I'm not sure that's the right or fair takeaway. I like Ron's op-ed quite a lot, but I think the right message to take from it, and what he reports in it, is more technical and less sentimental than that. I would be more inclined to take something like the following messages from the op-ed:

1) Legal doctrine itself is problematic--necessary, perhaps, but problematic. Courts, being courts--that is, being an institution that exists to make and then rationalize and coordinate legal decisions in individual disputes--will insist on casting their rationales for decisions in judicially manageable form. Some judges, for various reasons, both good and bad, will insist on coming up with doctrinal rules and tests right away, before all the facts in a particular area of human conduct are in; that doctrine may or may not last, and may or may not cause major problems down the line. Others will do it only after some time has passed and a number of decisions are under the judges' belt. Inevitably, though, over time, a series of more or less mechanical rules, regimes, factors, and standards will be built up. In many respects, this is a good thing. But it will ultimately be harder for judges to make sustainable unmediated decisions in individual cases, or less likely that all but a few mavericks will do so. For the most part, that's just not who and what modern judges in such a regime are.

2) Thus, if you are going to rely on a judicially interpreted First Amendment to do most of the work in setting speech rules and governing public discourse, prepare to be disappointed or underwhelmed. The age of the heroic judge will pass, and the bureaucratic First Amendment will remain in its stead. Perhaps that is a good thing, on the whole! Perhaps we think of the "age of the heroic judge" because those judges stand out in history, and because Americans are incurably sentimental, ahistorical hero-worshippers. A better picture of that era, with its few heroic judges and its many average judges giving little or no First Amendment protection at all, would conclude that free speech is better protected on the whole by bureaucratic judges, and a bureaucratic First Amendment, than by a few sweeping and imprecise speech-protective decisions issued by a few eloquent judges. The bureaucratic First Amendment at least causes more judges to issue more speech-protective decisions more often, although those decisions will often be rhetorically underwhelming and mostly mechanical.

3) This is the regime we have had since the Warren Court. Despite the nostalgia we may feel for judges like Johnson (or Fortas, in Ron's op-ed--and Fortas is certainly a model of the judge who does much and speaks powerfully, but does little that can be used readily by other judges), this model has resulted in a net gain of free speech protection. More speech is protected more often and more routinely and predictably than in the earlier model--understandably, since there is now more mechanical doctrine, each case is not so novel, and the bureaucratic model does not rely as heavily on the heroism or politics of individual judges.

But it has achieved this net gain by making free speech law broader, more applicable to more instances of speech and expressive conduct, and more egalitarian, and that has costs of its own. It applies to everyone and everything! (Corporations included.) Naturally, given its breadth--given the managerial role it gives judges across a huge swath of speech and conduct, and the need to coordinate this role in a judicially manageable fashion--it has given rise to more doctrines like government speech doctrine or public forum doctrine. These doctrines often give government (and the courts) an escape hatch, in order to make the whole enterprise more manageable for both judges and government officials. We have thus achieved manageability at a cost. Modern free speech doctrine achieves breadth and generality of protection. But it is sometimes less protective on occasions involving what we used to think of as "core speech activities." We have gotten more speech protection in more places, but less protection when and where it "really counts." After all, deciding that something "really counts" is just not a manageable, mechanical, predictable task, and certainly not one for the average judge carrying out his or her function in a coordinated system of constitutional adjudication.

Thus, we have a modern free speech doctrine that is, perhaps, better for average cases and average judges, but not especially responsive to extraordinary cases or liberating for extraordinary judges. This is not a surprising consequence of assigning the whole machinery of free speech to the judicial institution. Whether it is ultimately a good thing or not is a genuine question, and the answer to that question is a difficult one and cannot simply be arrived at via moral or emotional sentiment.

I note briefly in conclusion that much of this story is almost certainly applicable to other areas of First Amendment doctrine, such as the doctrine of the Religion Clauses, which is increasingly egalitarian and increasingly uninterested in or unable to deal with extraordinary cases or ideas. It is probably applicable to other areas of constitutional law as well.           

Here are some of the key quotes from Ron's op-ed:

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? . . . 

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. . . . 

Starting in the 1970s, however, the federal courts began rolling back this idea [that, as far as I can tell, as long as use of a space for political speech and activity is not incompatible with the intended use of the space, it must be permitted]. 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. . . . 

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. . . . .

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? . . . . 

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.