 Show The First Amendment is well-known to cover what we call “freedom of speech.” It means that every individual has the right to express an opinion and be free from government censorship, even if not everyone agrees with it. We discussed the First Amendment as it relates to blogging in a post in 2018. But freedom of speech doesn’t always include the spoken word. In fact, freedom of speech and expression can take a number of non-verbal forms. These are known as symbolic speech, actions that express specific ideas. Defining symbolic speechNon-verbal symbolic speech is the action clearly conveys a specific message to anyone who sees and reads it. Symbolic speech can take the form of:
The government must have an important reason and prove to a court that the message isn’t protected speech should be punished. Government disapproval cannot be the reason. But like fighting words, not everything is protected speech. The limits on freedom of speech and protected speechWhat freedom of speech does not mean is that you can say whatever you want without consequences. The fighting words doctrine includes speech or words that intentionally incite violence or cause distress, are not protected. Slander (lying), obscenity, child pornography and obscene gestures are also not protected as free speech. Two examples of symbolic speechOne example of these limits occurred during the Vietnam War. Students at two Des Moines, Iowa schools decided to wear black armbands to school as a silent protest to the war in Southeast Asia. Once the principals discovered the plan, they warned students that anyone wearing the armbands would be suspended. Three students were suspended as a result. Parents of these children sued, and the US District Court sided with the Southern District of Iowa sided with the school. The students lost on appeal, so they took the case to the Supreme Court. The case of Tinker v. Des Moines Independent Community School District brought the case to the Court to decide that students did indeed have the right to free speech at school. However, in this instance, the school was correct in prohibiting them to avoid disrupting learning at the school, and they had the right to do so. Another famous example of symbolic speech is the case of Texas v. Johnson, in which a man burned an American flag outside of the 1984 Republican National Convention. He chose to burn it there, where Ronald Reagan was about to receive the nomination to run for president, to protest Reagan’s policies. Soaking an American flag with kerosene in front of the Dallas City Hall, he set fire to it, and immediately arrested for violating a Texas state law prohibiting the burning or desecration of an American flag. He served a year in jail and paid a fine. The Texas Court of Criminal Appeals is the state’s highest appeals court for criminal cases. They argued that symbolic speech was protected by the First Amendment, and overturned his conviction. This led the way to a Supreme Court hearing in June 1989 that produced a controversial 5-4 ruling that burning the flag is, in fact, protected speech. The justices called it a bedrock principle that the government could not just prohibit an expression of speech just because society finds it offensive. The First Amendment protects your right to freedom of speechIf someone has threatened your right to free speech, you can fight back. Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We understand civil rights cases, and aggressively defend you in court and make sure your rights are protected.
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct,” which includes picketing and marching, distribution of leaflets and pamphlets, addresses to publicly assembled audiences, door-to-door solicitation, and sit-ins. There is also a class of conduct, now only vaguely defined, that has been denominated “symbolic conduct,” which includes such actions as flag desecration and draft-card burnings. Because all these ways of expressing oneself involve conduct rather than mere speech, they are all much more subject to regulation and restriction than is simple speech. Some of them may be forbidden altogether. But, to the degree that these actions are intended to communicate a point of view, the First Amendment is relevant and protects some of them to a great extent. Sorting out the conflicting lines of principle and doctrine is the point of this section. Page 2
Symbolic speech is a type of nonverbal communication that takes the form of an action in order to communicate a specific belief. Symbolic speech is protected under the First Amendment of the U.S. Constitution, but there are some caveats. Under the First Amendment, “Congress shall make no law… prohibiting free speech." The Supreme Court has maintained that symbolic speech is included within “free speech,” but it may be regulated, unlike traditional forms of speech. Requirements for regulations were laid out in the Supreme Court decision, United States v. O’Brien.
Symbolic speech has a wide variety of forms and uses. If an action makes a political statement without the use of words, it falls under symbolic speech. Some of the most common examples of symbolic speech are:
In 1968, United States v. O’Brien redefined symbolic speech. On March 31, 1966, a crowd gathered outside the South Boston Courthouse. David O’Brien climbed the steps, pulled out his draft card, and set it on fire. FBI agents who observed the event from the back of the crowd took O’Brien into the courthouse and arrested him. O’Brien argued that he knew he had broken federal law, but that the act of burning the card was a way for him to oppose the draft and share his anti-war beliefs with the crowd. The case eventually made its way to the Supreme Court, where the justices had to decide if the federal law, which prohibited burning the card, infringed on O'Brien's First Amendment right to freedom of speech. In a 7-1 decision delivered by Chief Justice Earl Warren, the court found that symbolic speech, such as burning a draft card, may be regulated if the regulation followed a four-prong test:
The following examples of symbolic speech cases further refined U.S. federal policy on speech. In 1931, the California Penal Code banned public displays of red flags, badges, or banners in opposition to the government. The penal code was broken into three parts. Displaying a red flag was prohibited:
Yetta Stromberg was convicted under this code for displaying a red flag at a camp in San Bernardino which had received funding from Communist Organizations. Stromberg's case was eventually heard at the Supreme Court. The Court ruled that the first part of the code was unconstitutional because it violated Stromberg’s first amendment right to free speech. The second and third parts of the code were upheld because the state had a countervailing interest in prohibiting acts that incited violence. Stromberg v. California was the first case to include "symbolic speech" or "expressive conduct" under First Amendment protections for freedom of speech. In Tinker v. Des Moines, the Supreme Court addressed whether wearing armbands in protest was protected under the First Amendment. Several students had chosen to protest the Vietnam War by wearing black armbands to school. The court held that the school could not restrict the students' speech simply because the students were on the school's property. Speech could only be restricted if it "materially and substantially" interfered with school activities. Armbands were a form of symbolic speech that did not meaningfully interfere with school activities. The court ruled that the school violated the students' freedom of speech when they confiscated the bands and sent the students home. On April 26, 1968, Paul Robert Cohen walked into the Los Angeles Courthouse. As he moved down a corridor, his jacket, which prominently read “f*ck the draft” caught the attention of officers. Cohen was promptly arrested on the basis that he’d violated California Penal Code 415, which prohibited, “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.” Cohen maintained that the goal of the jacket was to depict his feelings about the Vietnam War. The Supreme Court ruled that California could not criminalize speech on the basis that it was “offensive." The state has an interest in ensuring that speech does not compel violence. However, Cohen’s jacket was a symbolic representation that did little to inspire physical violence as he walked through the corridor. Cohen v. California upheld the idea that a state must prove that symbolic speech is intended to incite violence in order to prohibit it. The case drew upon Tinker v. Des Moines to show that fear itself cannot provide a reason to violate someone’s First and Fourteenth Amendment rights. Only a year apart, all three of these cases asked the Supreme Court to determine whether the government could prohibit their citizens from burning the American flag. In all three cases, the court held that burning the American flag during the course of a protest was symbolic speech and was therefore protected under the First Amendment. Similar to their holding in Cohen, the Court found that the "offensiveness" of the act did not offer the state a legitimate reason to prohibit it. U.S. v. Eichman, argued in conjunction with U.S. v. Haggerty, was a response to Congress' passage of the Flag Protection Act in 1989. In Eichman, the Court focused on the specific language of the act. It allowed for the "disposal" of flags through a ceremony but not the burning of flags through political protest. This meant that the state sought to only prohibit the content of certain forms of expression.
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What methods of symbolic speech are used today?
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