| What
Is Symbolic Speech? When Is It Protected?
(Note to teachers: When you assign this activity, you
may want to invite a lawyer or law student to help with
discussion of these cases.)
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Community Resources
The
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 to peaceably assemble and to petition
the government for a redress of grievances.
Almost everyone knows that the First Amendment contains
the right to freedom of speech. What does this mean?
On its most basic level, it means you can express
an opinion without fear of censorship by the government,
even if that opinion is an unpopular one. However,
it does not mean you can say anything you want, whenever
you want. For instance, fighting words – words that cause distress or incite violence – are not protected. In addition,
obscene expressions are not protected by the First
Amendment.
While most people understand these basic limitations on
the right to free speech, understanding what constitutes
"free speech" is complicated. For instance, some people
argue that books, art, music, and other genres are also
forms of speech because they, too, are expressive in nature.
Over the years, the Supreme Court of the United States has
debated what limitations should apply to these genres. The
Court has also debated the claims made by others that actions
that express an opinion are also protected. Often, these
actions are referred to as "symbolic speech," which is below:
"Expression may be symbolic, as well as verbal. Symbolic
speech is conduct that expresses an idea. Although speech
is commonly thought of as verbal expression, we are all
aware of nonverbal communication. Sit-ins, flag waving,
demonstrations, and wearing . . . protest buttons are
examples of symbolic speech. While most forms of conduct
could be said to express ideas in some way, only some
conduct is protected as symbolic speech. In analyzing
such cases, the courts ask whether the speaker intended
to convey a particular message, and whether it is likely
that the message was understood by those who viewed it.
In order to convince a court that symbolic conduct should
be punished and not protected as speech, the government
must show it has an important reason. However, the reason
cannot be that the government disapproves of the message
conveyed by the symbolic conduct" (Arbetman,
442-3)
So, just as there are limitations on the extent to which
"free speech" applies to the spoken word, there are restrictions
on the actions that people seek to have protected as symbolic
speech.
Examine the actions below. Based on the information you
have just read, determine if each action listed is a form
of constitutionally protected "symbolic speech". In the
last column, provide a brief rationale for your response.
|
Action
|
Is the action a form of constitutionally
protected "symbolic speech?"
|
Rationale
|
|
YES
|
NO
|
| In
order to protest against a former employer, an individual
joins a picket line. State law says picketing is illegal.
The individual is arrested and fined $100.
Read
the case abstract and ruling.
|
|
|
|
| An
individual burns a draft card to express opposition
to the war. Federal law says that burning draft cards
is a crime.
Read
the case abstract and ruling.
|
|
|
|
| A
department store employee wears a jacket that says "F---
the draft. Stop the War." The individual is convicted
for violating a law that forbids "maliciously and
willfully disturb[ing] the peace and quiet of any neighborhood
or person [by] offensive conduct." The individual
is arrested and sentenced to 30 days in jail.
Read
the case abstract and ruling.
|
|
|
|
| An
organization applies for a permit to hold a demonstration
on the National Mall. Members plan to erect "tent
cities" in order to demonstrate the plight of the
homeless. The permit was denied on the grounds that
camping is forbidden on the Mall.
Read
the case abstract and ruling.
|
|
|
|
| New
Hampshire's state motto, "Live Free or Die"
appears on license plates. An individual covers "or
die" on the grounds that it goes against his religious
and political beliefs. He is convicted for violating
a state law, fined, and sentenced to jail time.
Read
the case abstract and ruling.
|
|
|
|
Questions to Consider:
- Are there any general standards that seem to apply to
symbolic speech?
- Based on what you have learned about symbolic speech,
how do you think the Court will rule in Texas v. Johnson?
Works Cited
Arbetman, Lee P. and Edward L. O'Brien, eds. Street
Law: A Course in Practical Law, sixth edition. Lincoln,
Illinois: National Textbook Company, 1999.
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