Abstract

Excerpted From: Lucy Jewel, See That in a Small Town: Visual Rhetoric, Race, and Legal History in Tennessee, 15 Georgetown Journal of Law & Modern Critical Race Perspectives 1 (2023) (506 Footnotes) (Full Document)

Jason Aldean's music video for “Try That in a Small Town” shows the power of visual rhetoric. The video shows Aldean and his band performing in front of the Maury County Courthouse in Columbia, Tennessee. This is the same courthouse where, in 1918, a white mob violently lynched a young Black man. After recounting a laundry list of dog whistle topics focused on urban crime, Aldean mentions “a gun that my granddad gave me” and implores the audience to “try that in a small town.” As a backdrop to these lyrics, the video juxtaposes Aldean and his band in front of the courthouse interspersed with news footage from the summer of 2020. The video's use of news footage powerfully employs a visual logical fallacy-synecdoche. Images of lawful protesters are indiscriminately mixed in with images of unlawful rioters so that the unlawful imagery stands in for the whole. The Country Music Network quickly took down the video after complaints that the subtext was undeniably racist and violent.

This Article is about visual rhetoric, race, and the law in Tennessee. It is also about how white supremacist narratives have become visually entwined with the law. In 2022 and 2023, Tennessee gained significant notoriety in national news--the murder of Tyre Nichols, the Coventry Christian School mass shooting, and the expulsion of two Black lawmakers from the Tennessee legislature. Historically, Tennessee has also grappled heavily with race, violence, and the law. The Ku Klux Klan was founded in Pulaski, Tennessee, and Dr. Martin Luther King, Jr. was assassinated in Memphis, Tennessee. While this article is centered in Tennessee, the issues (urban versus rural, white versus Black, truthful history versus disinformation) are present everywhere in the United States, which is caught in a stranglehold of polarized conflict. The article is organized around three different legal scenes from Tennessee, each of which illustrates a lesson about visual rhetoric and the law.

Scene One: This Article begins in Pulaski, Tennessee, the town that gave birth to the Ku Klux Klan. In Pulaski, the courthouse jury deliberation room contains the national Confederate flag known as the “Stars and Bars” on the door, above the words “U.D.C. Room.” Hanging on the walls of the jury deliberation room is a different Confederate flag, the “blood-stained banner,” as well as portraits of Jefferson Davis, the president of the Confederate States of America, and General John C. Brown, who fought for the Confederacy.

1. Description: This photo depicts the entry into the jury room in the Giles County Courthouse. There is a wooden door with a glass pane in the middle/center. Painted onto the glass pane is the insignia of the United Daughters of the Confederacy, which contains an image of the National Confederate Flag (the Stars and Bars flag) with a wreath surrounding it. Underneath the insignia are the words “U.D.C. Room.” Photo from the Appellate Record in State v. Gilbert and State v. Martin, photo courtesy of Evan Baddour, Esq.

“U.D.C.” refers to the United Daughters of the Confederacy, an organization of elite women founded in Nashville, Tennessee in 1894. The U.D.C. promoted (and still promotes) false “Lost Cause” narratives about the Civil War, de-emphasizing the Confederacy's embrace of legalized chattel slavery. They honor the heroic valor of Confederate male soldiers, lament the federal intrusion into the South during Reconstruction, and ultimately mourn the disappearance of an idyllic, antebellum way of life where enslaved people were faithful to the master class and happy to serve.

Recently, two defendants of color challenged the impartiality of the proceedings that took place in the Pulaski U.D.C. jury deliberation room in Giles County, Tennessee. Those challenges spawned two Tennessee Court of Criminal Appeals cases. In both cases, the defendants argued that holding jury deliberations in the Confederate courtroom violated their right to an impartial jury. These two Court of Criminal Appeals cases, decided by different panels of judges, reached different outcomes. One, State v. Gilbert, ordered a new trial because the defendant met his burden that jurors were exposed to extraneous information. The Tennessee Supreme Court declined to hear the State's appeal while simultaneously designating the Gilbert case as “not for publication.”

The other case, State v. Martin, denied the defendant a new trial, finding that the defendant waived his right to object to the jury room and failed to meet the higher burden of appellate “plain error” review. The Martin court explicitly held that it was not required to follow its sister court's opinion in State v. Gilbert because the Tennessee Supreme Court had designated that opinion as “not for publication.” The Tennessee Supreme Court, without opinion, declined to hear the Martin case, designating that appellate decision as “published” and therefore binding. Thus, the Supreme Court of Tennessee held that a Black defendant has no recourse when brought to trial in a courthouse where the jury deliberates under an inflammatory flag and heroic imagery of a treasonous sovereign, the Confederate States of America. Not wanting any more appeals about its jury room, Giles County officials (where Pulaski is situated) acted to remove the Confederate memorabilia from its jury deliberation room. County officials could not do this immediately, however, because the Tennessee Heritage Protection Act (“THPA”) mandates a time-consuming and labyrinthine process before any Confederate artifact can be removed from a public space.

2. Description: This photo shows the U.D.C. jury room with the door opened. Inside, hanging on the back wall, one can see the Third National Flag of the Confederate States of America. Photo from the Appellate Record in State v. Gilbert and State v. Martin, photo courtesy of Evan Baddour, Esq.

3. Description: This photo contains a close-up image of the framed confederate flag in the Giles County Jury Deliberation Room. The battle flag is white with a red stripe on the right side. On the left side is the iconic Confederate “Southern Cross,” a red square with a blue X shape with stars inside. This flag was the third official flag of the Confederate States of America, which has generally been referred to as the “Blood-Stained Banner.” Photo from the Appellate Record in State v. Gilbert and State v. Martin, photo courtesy of Evan Baddour, Esq.

4. Description: This is a photo of the plaque underneath the framed flag indicating that the flag is the property of the Giles County Chapter #257 of the U.D.C. Photo from the Appellate Record in State v. Gilbert and State v. Martin, photo courtesy of Evan Baddour, Esq.

5. Description: On the left side of this photograph hangs a portrait of Jefferson Davis, president of the Confederate States of America. On the right side hangs a portrait of General John C. Brown, a Confederate officer from Giles County. Photo from the Appellate Record in State v. Gilbert and State v. Martin, photo courtesy of Evan Baddour, Esq.

. . .

6. Description: This photograph shows a framed letter, hanging on the wall in the Jury Deliberation Room. The letter, dated March 25, 2005, is from the U.D.C national headquarters and is addressed to the Giles County U.D.C. chapter. The letter gives permission to the Giles County U.D.C. to restore the glass panel door with the U.D.C. insignia on it. Photo from the Appellate Record in State v. Gilbert and State v. Martin, photo courtesy of Evan Baddour, Esq.

. . .

Scene Two: Beyond the phenomena of Confederate memorabilia existing inside the courthouse, in Tennessee, Confederate monuments and imagery generally proliferate in prominent public spaces outside the courthouse. A recent survey identified a total of seventy Confederate monuments, with thirty-seven situated in and around county courthouses, twenty-one in other public spaces, and twelve in cemeteries. When one steps outside the Pulaski courthouse, one is confronted with a large monument commemorating Sam Davis, a Confederate soldier executed in Pulaski, Tennessee during the Civil War for spying on Union forces. A few miles north of Pulaski, in Franklin, Tennessee, another large pedestal Confederate monument sits outside the county courthouse. Further, when citizens enter county offices in Franklin County, they encounter the official Williamson County Seal, which contains imagery of the Southern Cross Confederate battle flag and a cannon. Local citizens have sought to re-design the County Seal, but pro-Confederates have stopped the process under the Tennessee Heritage Protection Act, a statute designed to protect and preserve Confederate monuments.

Figure 7. The Williamson County Seal. Description: This image shows the official seal of Williamson County, Tennessee. In the top left quadrant, one can see a cannon with the Southern Cross Confederate Battle Flag hanging upon it.

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Three: Visual rhetoric has also become intertwined with the divisive concepts and anti-CRT movements that have recently roiled Tennessee and many other states. By way of background, Tennessee recently enacted two statutes regulating how race and gender are taught in public K-12 schools and in public higher education. After a set of conservative talking points concerning Critical Race Theory, structural racism, and white privilege went viral, the Tennessee legislature acted alongside many other states to ban or severely curtail lessons on a variety of concepts, with a catchall provision banning lessons that cause “an individual to feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual's race or sex.”

Visual rhetoric has been at the center of complaints brought under the divisive concepts law. For example, in Franklin, Tennessee, Moms for Liberty, a conservative parents group, filed a complaint under Tennessee's K-12 Divisive Concepts Act, arguing that children's books about Martin Luther King, Ruby Bridges (participant in the effort to end segregation in New Orleans public schools), and Sylvia Mendez (participant in the effort to end segregation in California) violated the Act because the images in the books caused public schoolchildren to feel bad about their race. The complaint focused on several images in the books, with specific objections levied at the images of Black schoolchildren walking to school through crowds of screaming adults opposing integration. One of the images objected to, reproduced below, shows a fearful and vulnerable Ruby Bridges with federal marshals beside her. Bridges looks terrified as a throng of white segregationists yell at her and hold up signs in favor of schools for whites only. The text says that the “crowd seemed ready to kill her” and that “the marshals were frightened.”

8. Description: This image is from one of the books referenced in the Moms for Liberty Letter. The image shows text from the book describing what Ruby Bridges was seeing and feeling as she became the first Black child to attend her elementary school. The photo shows that Ruby Bridges has stopped in her journey to school. She is looking in fear at the crowd of white adults yelling at her. Two federal marshals stand protectively around her. The book's text says: “[t]he crowd seemed ready to kill her “and that “[t]he marshals were frightened.” Illustration from Robert Coles and George Ford, The Story of Ruby Bridges (Scholastic 1995) (reproduced with permission from Scholastic, Inc.)

. . .

Whereas public facing Confederate rhetoric falsely whitewashes enslavement's violence and celebrates white heroism before, during, and after the Civil War, these civil rights images tell a compelling counter-story. They make real the fear, pain, and suffering felt by Black children. Conservative white parents in Tennessee do not want their children exposed to these images. They would scrub all disturbing images of racial oppression from history while at the same time allowing Tennessee's public Confederate monuments, as well as commemorations to the Confederacy in modern government seals, to stand tall forever.

[. . .]

Injustice in Pulaski, Tennessee threatens justice everywhere. Giles County petit and grand juries no longer deliberate in a jury room decorated with Confederate memorabilia. Notably, however, Giles County and the U.D.C. together must submit a written petition for a waiver to the Tennessee Historic Commission (now the Tennessee Monuments Commission) before the objects can actually be removed from the courtroom. One might ask, why bother writing about these two seemingly inconsequential cases from rural Tennessee when the harm has already been remedied? There are at least two reasons.

First, anyone interested in the law and racial justice should know about these two obscure cases. Although there was some news coverage for Gilbert and Martin, there was no news coverage when the Tennessee Supreme Court quietly denied Mr. Martin's appeal in January 2023. It is unknown whether other similar jury rooms exist beyond Giles County. They might. Confederate imagery may not be present inside many other jury rooms in Tennessee, but symbols of the Confederacy stand proudly outside many Tennessee state courthouses in the form of large monuments honoring the Confederacy and its soldiers. It appears that at least one remote rural courthouse in Macon, County Tennessee is flying the first National Confederate flag on its courthouse grounds. It does not appear that there has been any protest about it.

Second, I hope this Article conveys how dangerous and toxic Confederate visual rhetoric is; it is not a neutral nod to Southern history. A common apologist salvo for Confederate imagery is that the Confederate flag and Confederate monuments represent “heritage, not hate.” This aphorism is based on a fallacious piece of logic, which is that Confederate heritage does not include hatred or hatefulness. Explicit hatred for Black people abounded in speeches in front of thousands of people that took place as Confederate monuments were unveiled; the language of the U.D.C. members proposing monuments to faithful slaves and Lost Cause lessons for schoolchildren; and the words of 1950s and 1960s segregationists as they raised the Confederate flag on public property and continued to force Lost Cause narratives on public school children. After the Civil War, as organizations like the U.D.C. hosted Confederate memorial days and Confederate statue unveilings where Lost Cause rhetoric proliferated, confederate veterans “openly used the term Anglo-Saxon supremacy” to celebrate the men, the soldiers who fought to “maintain the supremacy of the white race.”

The insistence that the Confederate flag is a benign symbol completely ignores the valid perceptions of the minoritized people who have had to gaze upon the Confederate flag and Confederate statues. People of color are forced to look at these images every day, in the past and the present, and see the taunts of white people, smugly suggesting, through the permanence of the images, that Jim Crow and Dixie will stand forever. The forced viewing of these images recreates trauma over and over again, which then produces negative mental and physical health effects. White supremacy and racial hatred cannot be untangled from Confederate imagery.

Beyond the Gilbert and Martin cases, the THPA and Tennessee's Divisive Concepts bills show how visual rhetoric is so deeply entangled with race and the law. These visual rhetoric examples highlight issues that are not exclusive to Tennessee; they are endemic in the U.S., particularly in the South. The THPA undemocratically prevents local citizens from removing odious Confederate monuments from public land in their community. Every day, citizens are forced to look upon visual symbols of white supremacy.

While the THPA shields Confederate monuments from removal and destruction, Tennessee's Divisive Concepts laws give groups the power to threaten teachers and censor images of past historic racism in order to present U.S. history in a false, whitewashed format. The Divisive Concepts trend mirrors the past practices of the U.D.C., which erected visual testaments to Confederate heroism while at the same time mandating false history lessons celebrating the Confederacy. In the past and present, the law enforces a view where immovable Confederate monuments stand tall while the truth about history and racism, taught through powerful, compelling images, remains shrouded.

Joel A. Katz Distinguished Professor of Law, University of Tennessee College of Law.