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UPDATED (Oct. 23, 2023): I just went on a long tour of Robben Island in South Africa. Before turning to today’s post on dissent, I thought I might share a few additional thoughts on the subject. Visiting this island (a monument to cruelty) where political prisoners were incarcerated is a poignant reminder of the relationship between protests and punishment (about which I plan to write more). Of course, the prison had a “censor’s office” where all mail and reading materials had to pass a strict and arbitrary test. Below is a sign within the prison to the censorial quarters. – rklc 

In his 1999 book “Dissent, Injustice, and the Meanings of America,” Steve Shiffrin called for placing “dissenters at the center of the First Amendment tradition.” Though it may be a bit romantic (typical of Steve), I’m quite fine with it. From that conceptual perch, one might well endorse yet another romantic free-speech proposition: “If we appear to seek the unattainable…then let it be known that we do so to avoid the unimaginable.” 

It is against this backdrop that I return to the item below, which was first posted on First Amendment News back in March of 2020. Now, as then, I’m attracted to the likes of dissenters such as Jacqueline Smith because they upset the apple cart with such tenacity that one thinks they are either deeply committed — or need to be committed. Again, either way, I am fine with this since something is to be said for HOWLing at the moon, at least as a romantic free speech principle. With that, let me introduce you to Ms. Jacqueline Smith, a committed dissenter.

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 , an anti-pedophile activist, who spent 20 years (7,300+ days) protesting outside the Apostolic Nunciature in Washington, D.C. 

Her name is  and you'll find her across the street from the where Dr. Martin Luther King was murdered on April 4, 1968. Ms. Smith  at the motel for $10 a day and also lived there for . She was its last resident. In 1988, she was evicted by order of the state of Tennessee.

"You people are making a mistake," Smith 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 a tattered copy of Dr. King's "”) while at the same time protesting across from the Lorraine, now part of the National Civil Rights Museum.

Her complaints? They're :

• "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 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 , 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!

• YouTube interviews  and .
• For an extended discussion, see Sean H. Wang's "," in Cultural Geographies (2016) and J.P. Jones, III's piece "The Street Politics of Jackie Smith," in Gary Bridge & Sophie Watson's (eds.), "," (2000).

Related

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 "" (1965). As Abner Mikva (then a state legislator)  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 . 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., ).

New cert. petition: Telephone harassment statutes challenged

The case is . 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 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.

• filed by Eugene Volokh on behalf of the Pennsylvania Center for the First Amendment in support of the Petitioner.
• filed by Lisa S. Hoppenjans on the National Coalition Against Censorship in support of the Petitioner.
• . (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 . 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 ; 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:

Knight Institute comments on proposed Espionage Act reform legislation

This from a Knight First Amendment Institute :

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.

Four scholarly articles of note

• David L. Hudson, Jr., ","  Case Western Reserve Law Review (2019)
• Jessica Ice, "," Case Western Reserve Law Review (2019)
• Jr. Watt Lesley & Elizabeth A. Shaver, "," Nevada Law Review (2019)
• Jill I. Goldenziel & Manal Cheema, "," Maryland Law Review (2020)

More in the news

• "" First Amendment Watch (March 13)
• Christian Britschgi, "" Reason (March 11)
• Editorial, "," Las Vegas Review-Journal (March 10)

2019–2020 SCOTUS Term: Free Expression & Related Cases

Opinions or Judgments Handed Down

• (per curiam with Ginsburg, J., statement concurring in remand)

Cert. Granted

•  (: Feb 25)
•   (March 25)
• (March 25)
• (March 22)
•  (consolidated w/ ) (April 28)
•  (TBD)

Pending Petitions

• (motion to file cert. petition with sealed filing )

Petitions Denied

•  (Alito, J., dissenting from denial of cert.)
• (Alito, J., dissenting from denial of cert.)

First Amendment Related 

•  (interpretation of Section 230(c)(1))
• (interpretation of Section 230(c)(1))

First Amendment Related: Cert. Denied

• (void for vagueness, “moral turpitude”)

Last Scheduled FAN

• FAN 245: Chemerinsky Files Cert. Petition in Government Employee Speech Case