A monumental moment in the history of symbolic speech — Mamie Till-Mobley and Emmett Till’s open-casket funeral — First Amendment News 409

The First Amendment is more than law. It is a way of life. Its symbolic and functional meanings extend well beyond what pinstripe-suited lawyers proclaim in courtrooms, beyond what black-robed judges pen in case reports, and certainly beyond what cardigan-sweatered professors pronounce in scholarly journals. James Madison’s genius cannot be restricted to the cramped quarters of legal doctrine or to the tidy categories of legal theory. To experience the First Amendment’s full meaning, one needs no more than to breathe its air.

“Let the people see what they did to my boy.” 

Those were the stirring words of Mamie Till-Mobley in early September of 1955, after viewing the brutalized body of her 14-year-old son Emmett. In contravention of an order by the local sheriff, Mamie had Emmett’s corpse removed from Mississippi and transported to Chicago, insisting on an open-casket funeral service.

The service was held on Sept. 3, 1955 at the Roberts Temple Church of God in Christ (recently declared a national monument) in Chicago. As estimated by Jet magazine, more than 50,000 people attended. Those inside the church peered into the open coffin revealing Emmett’s grotesquely disfigured face. As Jesse Jackson put it so well nearly a half-century later: “Mamie turned a crucifixion into a resurrection.” 

Mamie’s courageous actions represent one of the most poignant examples of symbolic speech in the history of this nation, and helped to significantly buttress the modern civil rights movement. 

View video

Though lawyers and law students think of symbolic speech in terms of draft-card burning (United States v. O’Brien), flag burning (Texas v. Johnson), or students wearing black armbands to protest the Vietnam War (Tinker v. Des Moines), the culture of symbolic speech is not cabined in such decisional law. Thus understood, the First Amendment is more than what judges say: It is also about what people do. Moreover, the history of symbolic speech in America extends back at least as early as 1765 when, as professor Stephen Solomon has pointed out, “a group of Boston activists opposing the Stamp Act hung effigies from the largest and most magnificent elm tree in Boston. The effigies were of Lord Bute, the former prime minister held responsible for the hated tax.” 

My point is, when we think about the First Amendment, let us expand our conceptual horizons beyond case reports. There is so much more, and so much more at stake, when it comes to free speech.

Related

• Ronald Collins, “Tragedy on Trial: The Story of the Infamous Emmett Till Murder Trial,” Carolina Academic Publishing (Forthcoming, February 2024)

Federal shield law passes in House

• Gabe Rottman, “House passes PRESS Act,” Reporters Committee (Jan. 22)

The PRESS Act is the strongest federal shield legislation proposed to date. 

For the second time in as many Congresses, the House of Representatives passed last week, without objection, a federal reporter’s privilege bill under suspension of the rules, a procedure reserved for conspicuously noncontroversial, bipartisan legislation.

As we’ve written many times, the Protect Reporters from Exploitative State Spying Act, or PRESS Act — led by Reps. Jamie Raskin (D-Md.) and Kevin Kiley (R-Calif.) and co-sponsored by a group of 18 other members, nine Republicans and nine Democrats — is the strongest federal shield legislation proposed to date. The bill, H.R. 4250, would bar the federal executive agencies and courts from forcing reporters to identify confidential sources or disclose sensitive newsgathering material, except in very limited circumstances.

Crucially, the bill includes a broad, functional definition of “covered journalist” that applies to anyone who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” As such, it avoids certain artificial constraints that featured in past bills, including a requirement that the covered journalist earn a living from reporting or be employed professionally by an institutional news organization. As we wrote recently in a friend-of-the-court brief in the Tim Burke case in Tampa, a functional approach is the best one.

One thing that we haven’t covered as closely is that the bill avoids a major pitfall in earlier versions of the legislation: a broad exception for national security “leak” cases. 

SCOTUS denies review in subsidized union speech case

• Alaska v. Alaska State Employees Association

Issue: Whether the First Amendment prohibits a state from taking money from employees’ paychecks to subsidize union speech when the state lacks sufficient evidence that the employees knowingly and voluntarily waived their First Amendment rights.

J. Michael Connolly (Counsel of Record for Petitioners)

Cole reviews Lukianoff and Schlott on cancel culture

• David Cole, “Who’s Canceling Whom?” New York Review of Books (Feb. 8) (reviewing “The Canceling of the American Mind: Cancel Culture Undermines Trust and Threatens Us All—But There Is a Solution” by Greg Lukianoff and Rikki Schlott)

Here are a few excerpts:

On Stefanik congressional hearing

The instantly notorious exchange in a congressional hearing on December 5 between Representative Elise Stefanik and the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology laid bare once again the fragility of our collective commitment to free speech. Stefanik repeatedly asked the presidents whether a student calling for the genocide of Jews (which she equated with calling for “intifada”) would violate their institutions’ codes of conduct or constitute bullying or harassment. Each one replied, in effect, “It depends.”

Despite the outrage that followed, that’s actually the right answer if universities respect free speech principles.

When free speech principles are “likely to bend”

When a university president has to resign because she stands up for free speech principles, those principles are likely to bend.

College campuses are not paragons of tolerance and intellectual diversity

It is true that college campuses have not been paragons of tolerance and intellectual diversity in recent years, as amply illustrated by a timely book, The Canceling of the American Mind. [The authors] offer persuasive evidence that students, professors, and administrators at many colleges and universities across the country have been too quick to punish or cancel those whose views contravene progressive orthodoxy on race, gender, sexuality, and other matters.

Documenting a serious problem but not akin to McCarthy era

Lukianoff and Schlott, in short, have documented a serious problem, but like many advocates, at times they indulge in rhetorical excess. They assert, for example, that the past decade has seen repression of speech akin to or worse than that of the McCarthy era. . . . As disturbing as cancel culture is, it is just that: a culture of largely private intolerance, not a system of official repression. There is a huge difference. Among other things, cancel culture can't land you in jail. [. . . .] So while cancel culture is undeniably troubling, we are not reliving the McCarthy era.

[ . . . ]

As bad as the situation may be, it is also not obvious that intolerance on college campuses is worse today than before.

When campus speech can be regulated

On campus as in the workplace, denigrating speech can sometimes constitute discriminatory harassment, which is not protected by the First Amendment. Yelling such an epithet at a particular Jewish student or pinning such a sign to his dorm room door could be considered religious harassment, not free speech. Even when not directed at a particular individual, if such a statement were repeated so often that it pervaded the campus, it could create a “hostile” learning environment that would also amount to prohibited discrimination, not protected speech. And a professor in a classroom could forbid such a statement as interference with civil and robust discussion.

Steps to promote free speech on college campuses

Lukianoff and Schlott do not acknowledge it, but in recent years universities and colleges have in fact undertaken substantial efforts to promote free speech on campus (no doubt in part because of FIRE’s and others’ persistent advocacy).

Related

• “Greg Lukianoff and Rikki Schlott: The Canceling of the American Mind, The Commonwealth Club of California,” Simon & Schuster (Nov. 2023)

View video

First Amendment Watch Q&A with Laurie Halse Anderson on book banning

• Susanna Granieri, “Best-Selling Author Laurie Halse Anderson on Challenging Iowa’s Controversial Book Ban,” First Amendment Watch (Jan. 23)

Best-selling author Laurie Halse Anderson, known for her young adult and children’s books, joined a lawsuit filed in November challenging a controversial Iowa law that allegedly prompted the recent removal of her 1999 breakout novel “Speak” from libraries and classrooms in 14 public school districts in the state.

“Speak” is based on Anderson’s personal experience with sexual assault as a teenager. The new Iowa law, Senate File 496, sought to ban books containing sexual content in public school libraries and classrooms through sixth grade, but parts of the law were temporarily blocked on Dec. 29, days before the law would have gone into effect.

Judge Stephen Locher of the U.S. District Court for the Southern District of Iowa said in his decision that the ban on books is “incredibly broad,” sweeping up award-wining novels and history books, and “even books designed to help students avoid being victimized by sexual assault.”

In an interview with First Amendment Watch, Anderson expressed concern about the new wave of book banning across the country and argued that parents, rather than shield their children from uncomfortable material, should use her book and others like it to have difficult conversations about important issues affecting their children’s lives.

New book by Jeff Kosseff on free speech and misinformation

• Jeff Kosseff, “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation,” Johns Hopkins University Press (2023)

Thanks to the First Amendment, Americans enjoy a rare privilege: the constitutional right to lie. And although controversial, they should continue to enjoy this right.

When commentators and politicians discuss misinformation, they often repeat five words: "fire in a crowded theater." Though governments can, if they choose, attempt to ban harmful lies, propaganda, misinformation, and disinformation, how effective will their efforts really be? Can they punish someone for yelling "fire" in a crowded theater ― and would those lies then have any less impact? How do governments around the world respond to the spread of misinformation, and when should the US government protect the free speech of liars?

In Liar in a Crowded Theater, law professor Jeff Kosseff addresses the pervasiveness of lies, the legal protections they enjoy, the harm they cause, and how to combat them. From the COVID-19 pandemic to the 2016 and 2020 presidential elections and the January 6, 2021, insurrection on the Capitol building, Kosseff argues that even though lies can inflict huge damage, US law should continue to protect them. Liar in a Crowded Theater explores both the history of protected falsehoods and where to go from here.

Drawing on years of research and thousands of pages of court documents in dozens of cases ― from Alexander Hamilton's enduring defense of free speech to Eminem's victory in a lawsuit claiming that he stretched the truth in a 1999 song ― Kosseff illustrates not only why courts are reluctant to be the arbiters of truth but also why they're uniquely unsuited to that role. Rather than resorting to regulating speech and fining or jailing speakers, he proposes solutions that focus on minimizing the harms of misinformation. If we want to seriously address concerns about misinformation and other false speech, we must finally exit the crowded theater.

Related

• Christine Foster, “Law professor focused on ways in which First Amendment interplays with false information,” UChicago News (Nov. 14)

‘So to Speak’ podcast interview with Jeff Kosseff

• “‘Liar in a Crowded Theater’ with Jeff Kosseff,” FIRE (Jan. 18)

View video

Jeff Kosseff is an associate professor of cybersecurity law in the United States Naval Academy's Cyber Science Department. He is the author of four books including his most recent, “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.” He has also written books about anonymous speech and Section 230 of the Communications Decency Act.

National Constitution Center panel on SCOTUS tech cases

• “Institute’s Alex Abdo Discusses Supreme Court Tech Cases with National Constitution Center,” Knight First Amendment Institute (Jan. 17)

Litigation Director Alex Abdo joined the National Constitution Center’s America’s Town Hall conversation series this week for a discussion, moderated by Jeffrey Rosen and also featuring Clay Calvert and David Greene, on the technology cases currently before the Supreme Court. These cases address whether public officials can block people on social media and how, and whether, the government can influence social media platforms’ content moderation decisions.

On how to address the concentration of power in the social media platforms over public discourse, Abdo noted, “Laws directed at competition, or interoperability, or privacy, or transparency … are a much better model to pursue than laws that are directed at content moderation directly.

View video

New scholarly article on online influencers and defamation law

• Frank LoMonte and Stephanie Leibert, “Internet Famous: Are Online Influencers and Micro-Celebrities Public Figures Under Defamation Law?” Missouri Law Review (Jan. 18)

Social media and video-sharing sites have introduced the concept of “micro-celebrity,” a person who attains fame — rapidly, and potentially fleetingly — among a niche audience of internet users for doing something colorful. As with anyone who participates in the sometimes sharp-elbowed give-and-take of online discourse, these niche celebrities are increasingly being drawn into controversies that can result in litigation. For nearly 60 years, the Supreme Court’s Sullivan standard has afforded critics an extra measure of breathing space when they comment on the conduct of “public” personalities — people with outsized influence, and the ability to defend themselves effectively through counterspeech. The question courts increasingly will be forced to reckon with is: What does it mean to be “public” in an era when otherwise-obscure people can become “internet famous” overnight?

This Article examines how courts might analyze libel claims brought by people whose “public” status is limited to an avid following on social media. It discusses the rise of “influencer culture,” in which people purposefully cultivate an online audience in hopes of monetizing their fame to endorse goods or services, or to gain attention for a cause. And it looks at how courts have analyzed the status of “limited purpose” public figures, based on judges’ (sometimes-unpredictable) understanding of what it means to seek to leverage the public dialogue to influence a matter of public controversy. In light of established libel principles, the authors argue that — if the touchstone of public-figure plaintiff status is fairness — it is fair to hold a plaintiff to a heightened legal burden if that person has placed their trustworthiness at issue by seeking the limelight, even if only to sell cosmetics. The Article concludes that it is essential for the Supreme Court — which set enduring ground rules for libel cases in an era when newspaper editors and network TV anchors were the gatekeepers of fame — to clarify what it means for a person to become “public” and to be involved in a “public controversy,” now that public discourse reaches well beyond newspaper pages and TV screens, into topics far afield from politics and human rights.

More in the news

• “After Setbacks, Bill to Define Antisemitism in State Law Is Advancing in Georgia,” First Amendment Watch (Jan. 23)
• Eugene Volokh, “Alleged Panama Papers Leaker Still May Not Sue in Federal Court While Hiding His Name from the Court,” The Volokh Conspiracy (Jan. 23)
• Adam Jacobson, “Noted First Amendment Lawyer Supports WTXF License Nix,” Radio+Television Business Report (Jan. 23)
• Alex Demas, “No, There Is No ‘First Amendment Right’ to Block a Roadway,” The Dispatch (Jan. 23)
• Alan Rozenshtein, “Mandatory DEI Trainings and Academic Freedom,” The Volokh Conspiracy (Jan. 22)
• Tiffany Hsu, “New Hampshire Officials to Investigate A.I. Robocalls Mimicking Biden,” The New York Times (Jan. 22)
• Thomas A. Berry, “Two Great First Amendment Decisions by Judge Willett and the Fifth Circuit,” Cato Institute (Jan. 22)
• Brian Witte, “Panel of judges says First Amendment challenge to Md.’s digital-ad tax should be considered,” Free Speech Center (Jan. 18)
• Daniela Ospino Pallares, “Knight First Amendment Institute challenges SJP, JVP suspension,” Columbia Spectator (Nov. 19)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (argued Oct. 31)
• Moody v. NetChoice, LLC / NetChoice, LLC v. Paxton / NetChoice, LLC v. Moody (argument: Feb. 26, 2024)
• National Rifle Association of America v. Vullo

Pending petitions

• Molina v. Book
• Pierre v. Attorney Grievance Commission of Maryland
• Porter v. Martinez
• Brokamp v. James
• Speech First, Inc. v. Sands
• O’Handley v. Weber

State action

• Lindke v. Freed (argued Oct. 31)

Review denied

• Porter v. Board of Trustees of North Carolina State University
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion)
• Jarrett v.  Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related 

• Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States

Previous regularly scheduled FAN

FAN 408: “Values Lady: give up your vows! The death of normative theories of free speech”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.