I don’t see no time in the future that I would give up this protest unless something changes at the Lorraine Motel and by that I mean that it’s converted into a facility to help the poor and take care of the people King cared for. Until that day I’m going to continue to be here.
When you think of dissent in America beyond what lingers in lifeless casebooks, when you think of what dissidents do with their First Amendment freedoms, think of the woman who holds court (replete with a sofa and banners) at the corner of Butler and Mulberry Streets in Memphis, Tenn. Clad in dark clothes, sunglasses, and a purple scarf, this street protestor has weathered her post from dawn to dusk for more than 32 years (just under 12,000 days). That tops the record of John Wojnowski, an anti-pedophile activist, who spent 20 years (7,300+ days) protesting outside the Apostolic Nunciature in Washington, D.C.
Her name is Jacqueline Smith and you’ll find her across the street from the Lorraine Motel where Dr. Martin Luther King was murdered on April 4, 1968. Ms. Smith worked at the motel for $10 a day and also lived there for 11 years. She was its last resident. In 1988, she was evicted by order of the state of Tennessee.
“You people are making a mistake,” Smith said while sobbing. “If I can’t live at The Lorraine, I’ll camp out on the sidewalk out front.” And she has held true to that promise (she carries a tattered copy of Dr. King’s “A Testament of Hope”) while at the same time protesting across from the Lorraine, now part of the National Civil Rights Museum.
Her complaints? They’re numerous:
- “We’ve seen the glorification of death and negativity with the multi-million dollar purchase of the rooming house from where Dr King was shot. We’ve seen gruesome artefacts purchased and displayed and we’ve seen the Lorraine motel host countless black tie dinners where the limousines and ball gowns grace the streets.”
- “But what we’ve seen most is the complete disconnect between Dr. King’s dreams and aspirations and what the Lorraine actually offers today.”
- “Support for the homeless and disadvantaged, healthcare and help for the old and infirm. These are the issues that mattered to Dr King and they still matter today.”
- “Without wishing to sound arrogant, I think Dr King would approve of my work,” Smith says. “He was entirely focused on making things better for people and in my own small way, I’d like to think I’m following his example.”
As Mary T. Schmich reported in the Chicago Tribune (Feb. 28, 1988):
Smith argues that the money, to be chipped in by the state, the city and the county, would be better spent to house and educate the poor. She also believes that the museum will hasten the gentrification of the neighborhood, a quiet, desolate area of shoddy homes and old brick warehouses half-a-mile from downtown.
In a 2018 USA Today op-ed, Ms. Smith wrote:
We know Dr. King came to Memphis in April 1968 to support the sanitation workers, so I think it’s fair to say that Dr. King would be bitterly disappointed to see that nothing’s changed for the disadvantaged and underprivileged of our community.” And then she added: “Let’s be honest. We don’t need black-tie functions, limousines and ball gowns at the Lorraine. We need to demonstrate that we can live up to Dr. King’s memory.
That’s why I have protested continually for over 30 years outside the Lorraine. I was evicted as the last tenant of the Lorraine Motel in early 1988. I made a decision there and then that the Lorraine should be a beacon to the highest standards of selflessness, and that I would do all I can do to make the Lorraine a lasting testament to the aspirations of Dr. King.
Is Smith a crackpot? Some may think so. Is she speaking truth to power? Others think so. Would Dr. King have sided with her message? Probably. Yet whatever one makes of Jacqueline Smith, know this: She is a living testament to free speech in America, which is always a good sign in a democracy wed to the First Amendment. Long may she protest!
→ For an extended discussion, see Sean H. Wang’s “Walking in Memphis: Revisiting the Street Politics of Ms Jacqueline Smith” in Cultural Geographies (2016) and J.P. Jones, III’s piece “The Street Politics of Jackie Smith,” in Gary Bridge & Sophie Watson’s (eds.), A Companion to the City (2000).
The culture of free speech, the reality of the First Amendment, cannot be confined to the rarified realm of the “marketplace of ideas” or to what is buried in legal theories or quartered in judicial doctrines. Rather, that freedom finds its most robust moments in the streets where people march and assemble. Harry Kalven was mindful of that when he wrote “The Negro and the First Amendment” (1965). As Abner Mikva (then a state legislator) put it 55 years ago:
Professor Kalven’s book will quite likely serve long after the fact as one of the prime sources on the impact of the civil rights movement on our law. . . . Professor Kalven has bottled and diagnosed the unique thrust of the civil rights cases. The context in which the questions were raised does make a difference in the Court’s decisions. [Kalven’s book] . . . presents a marvelous documentary on the resiliency of the first amendment.
What gives the First Amendment such resilience is the courageous action taken by women and men in exercising their freedoms. It is that encounter with freedom of speech that gives real meaning to the First Amendment. It is so not only because of the First Amendment’s impact on the development of the law, but also because of the sense of dignity it brings to those who exercise it along with the sense of urgency it brings to those who witness others exercising their rights.
I was reminded of this obvious, though, easily overlooked point during a recent visit to the National Civil Rights Museum at the Lorraine Motel. It was there that I took notice of a moving moment captured in the photograph on the right. Maybe someday someone will come along and collect a variety of such photographs (replete with some historical discussion) in book form in order to give vibrant expression to what it means to live and speak freely (see, e.g., here).
New Cert. Petition: Telephone Harassment Statutes Challenged
The case is Waggy v. United States. The issue raised in the case is whether “a statute that prohibits telephone harassment may, consistent with the First Amendment, prohibit speech on matters of public concern or impose content-based restrictions on speech.”
In his cert. petition on behalf of the Petitioner, Neal Katyal argues:
The federal government and 43 States have enacted laws that criminalize telephone harassment. Some of these statutes apply only to calls that lack any legitimate purpose or that contain speech traditionally outside the protection of the First Amendment, such as true threats or obscenity. But some telephone harassment statutes apply even when the caller is speaking to a government official on a matter of public concern, or criminalize speech where the caller uses particular “words” or “language” deemed offensive. E.g. Wash. Rev. Code § 9.61.230(1)(a). Circuits and state high courts are deeply divided, 10-8, on whether such broadly written or content- based telephone harassment laws comply with the First Amendment.
- Amicus brief filed by Eugene Volokh on behalf of the Pennsylvania Center for the First Amendment in support of the Petitioner.
- Amicus curiae filed by Lisa S. Hoppenjans on the National Coalition Against Censorship in support of the Petitioner.
- Ninth Circuit opinion. (Graber, J., for the majority joined by Owens, J. with Tashima, J. dissenting)
- Eugene Volokh, Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California; Aaron H. Caplan, Loyola Law School, Los Angeles, California; for Amici Curiae. American Civil Liberties Union of Washington, Pennsylvania Center for the First Amendment, and Professors Aaron H. Caplan and Eugene Volokh in support of Defendant-Appellant.
Court Denies Review in Mandatory Bar Association Membership Case
The case is Fleck v. Wetch. The two issues raised in it according to SCOTUSBlog were:
(1) Whether laws mandating membership in a state bar association are subject to the same ‘exacting’ First Amendment scrutiny that the Supreme Court prescribed for mandatory public-sector union fees in Janus v. American Federation of State, County, and Municipal Employees, Council 31; and (2) whether it violates the First Amendment to presume that an attorney is willing to pay for a bar association’s ‘non-chargeable’ political and ideological speech, unless and until that attorney takes steps to opt out.
- Counsel of Record for the Petitioner: Timothy Sandefur
Knight Institute Comments on Proposed Espionage Act Reform Legislation
This from a Knight First Amendment Institute press release:
U.S. Senator Ron Wyden and Representative Ro Khanna today introduced legislation to reform the Espionage Act. The bill would narrow the Act to prevent the government from prosecuting journalists merely for obtaining or publishing classified information.
The following response can be attributed to Alex Abdo, Litigation Director at the Knight First Amendment Institute at Columbia University.
“This is a crucial effort to ensure that it isn’t a crime for national-security journalists to do their jobs. The bill would make clear that the everyday work of journalists isn’t an act of espionage. These protections for journalists are vital. It is also vital that Congress enact additional protections for national-security whistleblowers, who must risk personal and professional sanction to expose government malfeasance and corruption.”
In April of last year, the U.S. Department of Justice indicted WikiLeaks founder Julian Assange under the Espionage Act for his role in publishing classified documents in 2010. The indictment characterizes routine journalistic activities as “part of” a criminal conspiracy.
- David L. Hudson, Jr., “The Content-Discrimination Principle and the Impact of Reed v. Town of Gilbert,” Case Western Reserve Law Review (2019)
- Jessica Ice, “Defamatory Political Deepfakes and the First Amendment,” Case Western Reserve Law Review (2019)
- Jr. Watt Lesley & Elizabeth A. Shaver, “The First Amendment, Social Media, and the Public Schools: Emergent Themes and Unanswered Questions,” Nevada Law Review (2019)
- Jill I. Goldenziel & Manal Cheema, “Protecting First Amendment Rights in the Fight Against Disinformation: Lessons Learned from FISA,” Maryland Law Review (2020)
- “Newark Warns False Reporting of Coronavirus ‘Will Be Criminally Prosecuted,’” First Amendment Watch (March 13)
- Christian Britschgi, “Do You Have a First Amendment Right to a Slayer-Themed License Plate?,” Reason (March 11)
- Editorial, “‘No Labor Law Exception to the First Amendment’“, Las Vegas Review-Journal (March 10)
2019–2020 SCOTUS Term: Free Expression & Related Cases
Opinions or Judgments Handed Down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (argued: Feb 25)
- Carney v. Adams (March 25)
- United States Agency for International Development v. Alliance for Open Society International Inc. (March 25)
- Barr v. American Association of Political Consultants, Inc. (March 22)
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (April 28)
- Fulton v. City of Philadelphia (TBD)
- Waggy v. United States
- Waronker v. Hempstead Union Free School District
- Schmitt v. LaRose
- Austin v. Illinois
- Reisman v. Associated Faculties of the University of Maine
- National Association for Gun Rights, Inc. v. Mangan
- Institute for Free Speech v. Becerra
- Mckesson v. Doe
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Jarchow v. State Bar of Wisconsin
- Elster v. City of Seattle
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Charter Communications Inc. v. National Association of African American-Owned Media
- Doe 1 v. Federal Election Commission (motion to file cert. petition with sealed filing granted)
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
First Amendment Related
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
First Amendment Related: Cert. Denied
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
Last Scheduled FAN