A Lesson from History: Judge Frank Johnson on the Right to Protest

I too would call this a history lesson. Read on, it is interesting how these events were perceived. I was around then watching all of this unflod.

Civil Discourse

The Voting Rights Act Turns 60

Alabama, June 11, 1963. An American president deployed federalized National Guardsmen to help implement  Brown v. Board, the desegregation case. When Alabama Governor George Wallace refused to comply with court ordered integration of the University of Alabama, President Kennedy sent in National Guard troops to help the federal government escort the first Black students onto campus.

When Trump federalized and deployed the California National Guard in Los Angeles, over 60 years later, desegregating the University was one of two Alabama examples offered as justification. In addition to integration at the University, there was the well known situation involving the voting rights protest marches that began in Selma, where President Johnson ultimately federalized the Guard for use as support without the governor’s request.

And why not use Alabama as an example? Stephen Miller, the advocate for the harshest treatment of immigrants imaginable got his connection to Trump when Alabama’s Jeff Sessions became attorney general and took Miller, a Sessions aide, into Trump’s orbit with him. Miller’s Sessions connection left him with an awareness of what happened in Alabama but not of its full implications.

What happened in Alabama doesn’t set the unambiguous precedent for federalizing the National Guard to backstop ICE against protestors that Trump supporters might think. The bare facts, with the apparent similarity of a president using the guard, might imply it does. A slightly deeper dig into law and history suggests that using Alabama as an example undermines the administration’s desire to shut down protests over the way it is treating immigrants.

In 1965, after Bloody Sunday, when a peaceful march led by John Lewis in support of voting rights for Black citizens was met with blunt force from state troopers, Federal Judge Frank M. Johnson ordered Governor George Wallace to use the Alabama National Guard to protect marchers. Although Judge Johnson went on to become an Eleventh Circuit Judge, one of the great Civil Rights judges of that era, he was a district judge in 1965. His memorandum opinion and order illustrate the flaws in the Trump administration’s efforts to shut down citizen protests against ICE.

• In his opinion on March 17, 1965, Judge Johnson considered how to handle the mistreatment the local sheriff and his special forces were raining down on the protestors. He described mass arrests that weren’t justified by law and abuse of the prisoners.

Judge Johnson wrote that, as citizens, protestors had the “right to petition one’s government for the redress of grievances” and that right could be “exercised in large groups.” He continued, “where, as here, minorities have been harassed, coerced and intimidated, group association may be the only realistic way of exercising such rights.”

• The remedy? That same day, Judge Johnson issued a preliminary injunction that ordered Alabama’s governor and other state officials to stop interfering with people marching in support of voting rights. He also enjoined state officials from “failing to provide police protection” for those participating in the voting rights march Judge Johnson had ordered could proceed.

Judge Johnson swept broadly, telling law enforcement officers who wanted to prevent Black citizens from exercising their rights what they were forbidden to do:

And he told them they could no longer fail to provide police protection to marchers, a legal mechanism for ordering them to offer it.

The result? A march for voting rights, led by Martin Luther King Jr., that galvanized America and ushered in the Civil Rights era. Without Judge Johnson, that might not have happened.

So yes, the Trump administration wants to expand ICE’s work. Trump’s so-called border czar, Tom Homan, has openly acknowledged his interest in expanding the Guard’s role to include enhanced support for ICE anywhere anti-ICE protests crop up—in other words, using the Guard to shut down protests against the treatment of immigrants. But Judge Johnson’s words echo today;

“Americans have a right to protest unfair treatment of minorities, and they have a right to do so in large groups.”

National outrage over images of protests being suppressed in the 1960s galvanized Americans into action. Alabama’s history teaches us to protest and to insist on our right to protest, especially when cruelty is used and people are deprived of constitutional rights at the hands of a unit of government. The worst risk in this moment is that the administration will manage to normalize its treatment of immigrants. That it will normalize the denial of due process to people with brown skin. That it will rock the foundations of our Constitution, which offers fundamental protections to all people, not just citizens.

Next time you have the choice of protesting or doing something else, make a commitment to democracy. Go out and exercise the right Judge Johnson and other judges throughout our history have secured for you. Don’t let the opposition to the horrific anti-immigrant fervor that spawned the use of CECOT prison, dropping people into a war zone in South Sudan with no preparation, and the creation of Alligator Alcatraz die down. None of us want to be that country.

Yes, Epstein and the meltdown inside of the Republican Party are interesting and important. But let’s not take our eyes off of this administration’s horrific policy goals and give them the freedom to continue implementing them under the cover of all the drama.

We’re in this together,