The second amicus brief supporting our Scott v. Saint John’s Church in the Wilderness cert petition is the amicus brief of Historians of Art and Photography — Profs. Dora Apel (Wayne State), Stephen Eisenman (Northwestern), Renée C. Hoogland (Wayne State), Paul Jaskot (DePaul), William J. Thomas Mitchell (Chicago), Terence Smith (Pittsburgh), John Tagg (Binghamton), and Rebecca Zorach (Chicago). The brief was drafted by Trevor Anderson, Joseph G. Gilliland, and Ben Smyser of the Emory Law School Supreme Court Advocacy Project; the counsel of record and the Project’s Faculty Advisor is Prof. Sarah Shalf.
As the identity of the amici suggests, this brief goes into substantial detail on the historical value of photographs — including especially “gruesome” photographs of war and brutality — in American political life. This detail is what makes especially persuasive (in my own highly biased view) the brief’s main argument, which I quote here from the Summary of Argument:
Photographs, especially gruesome photographs, can speak with a power that text often cannot. Since the Civil War, people have used the photograph’s ability to stir emotion and engender visceral understanding to provoke debate about some of the most important issues our nation has faced, namely, issues of war. Unsurprisingly, many of the most important war images have been “gruesome.” Yet under the Colorado Court of Appeals’ interpretation the First Amendment, these photos would be subject to ban from public display precisely because they are evocative. Because the Colorado Court of Appeals’ opinion presents a threat to an historically-grounded method of expression that lends itself naturally to vibrant debate, this Court should grant certiorari and reverse.