In 1911, U.S. Sen. Augustus Bacon willed a tract of land to the city of Macon, Ga., to be used as “a park and pleasure ground” for white people, controlled by a whites-only board of managers.
Eventually, the city argued that the park could not continue to be segregated. In an effort to keep the park for the use of only white people, the Board of Managers sued to retain control of the park, and the city resigned as trustee.
Black citizens sued, and the U.S. Supreme Court ruled that the “predominant character and purpose of this park are municipal,” since Macon maintained and patrolled the park. A private park that functions as a public park is subject to the Constitution’s protections.
Though the equal protection questions are different, the parallels to Charleston’s Marion Square are significant.
The National Park Service has called Marion Square “the city’s most important public space,” and the city’s own website describes it as occupying “a crucial position in the urban structure of Charleston.” But as historian Nic Butler has put it, Marion Square is “a much-loved city park that doesn’t actually belong to the city.”
In 1833, the city transferred Marion Square to the Board of Field Officers of the Fourth Brigade, a militia group, on the condition that it would forever serve as a public mall and parade ground. Almost 200 years later, the public still funds the square’s landscaping, repairs and upkeep, and city police still patrol it.
When organizers request legal access to Marion Square for a vigil or demonstration, the city routinely cites its private ownership to steer protesters toward a less-visible park. Charleston’s demonstration ordinance does have an exception for spontaneous demonstrations within 48 hours of breaking news, and such demonstrations have taken place in Marion Square with significant police presence. Were Marion Square private property, protesters would be immediately dispersed and arrested for trespassing. They have not been.
In every way that matters, Marion Square is a public park belonging to Charleston’s citizens, maintained with their tax dollars and central to their civic life. The city cannot hide behind a 19th-century deed to evade constitutional obligations.
It’s time for Charleston City Council to repeal its demonstration ordinance and return Marion Square to its rightful place as a quintessential public forum.
Bonnie F. Cleaveland is a community activist with Secular Humanists of the Lowcountry. She lives in North Charleston.