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Symbolic Expression and the Original Meaning of the First Amendment:

I have an article with this title coming out next year in the Georgetown Law Journal, and I thought I'd serialize it here. You can read the full current draft here (or, if that doesn't work for you, here), and see all the footnotes. If you're wondering about the support for some of my assertions, please check the draft first. Plus, as a special bonus, you can think about how to cite to a case from the Star Chamber that isn't available in Eng. Rep., but is reported in John Rushworth, Historical Collections of Private Passages of State, Weighty Matters in Law, [and] Remarkable Proceedings in Five Parliaments, published in 1680, or speculate whether the Bluebook's section on New York caselaw should list the New York City Hall Record.

In any case, let me begin with the Introduction (plus some items from the Conclusion).

* * *

The First Amendment protects only "speech" and "press," not "expression": So some argue, condemning the Court's symbolic expression cases. Judge Robert Bork writes that "burning a flag is not speech and should not fall under First Amendment protection." Senators Orrin Hatch and Dianne Feinstein agree, as do many journalists, activists, and commentators.

Others similarly reason that the First Amendment doesn't protect the wearing of symbolic armbands or Ku Klux Klan regalia, or the symbolic refusal to salute a flag. Judge Richard Posner concludes that "Nothing in the text of the Constitution, or in the eighteenth century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech," partly because "Burning a flag is not even 'speech' in a literal sense." (Because Posner is not a textualist or an originalist, however, he doesn't fault the Court's results in symbolic expression cases; rather, he correctly points out that the Court didn't support those results on textualist or originalist grounds, and argues — incorrectly, as I argue below — that those results can't be supported on such grounds.)

The Supreme Court has disagreed with the Bork/Hatch/Feinstein position, and has generally treated "inherently expressive" or "conventionally expressive" symbolic expression the same way spoken words and printed matter are treated. Symbolic expression, the Court has concluded, is basically functionally identical to expression through words, and should thus be treated the same: The two convey much the same messages through much the same mental mechanism, with much the same effects and for much the same speaker purposes. But are the Court's critics right, at least if one focuses on the text and original meaning of the First Amendment? Is the Court's doctrine here vulnerable to reversal given the Court's growing turn to original meaning analysis?

Even conservatives on the Court and elsewhere have usually shown little interest in revisiting the Court's general free speech/free press precedents, which now consist of many hundreds of cases, or in adopting some Framers' attitudes towards seditious libel or even offensive public speech generally. But returning the definition of "speech" and "press" to its original meaning might be feasible, and the call to return to this definition deserves to be considered.

In this essay, I'll argue that the Court has had it right all along, and that the Court's critics are mistaken on originalist grounds. (The critics have not, to my knowledge, precisely defined their vision of what constitutes "speech," and in particular whether it's limited to spoken words — with "press" to cover printed words — or whether it is used more broadly to refer to all verbal expression but not to symbolic expression. My argument is that the original meaning of "the freedom of speech, or of the press" is broader than either of these definitions, because it covers conventionally expressive symbols as much as it covers verbal expression, whether spoken, handwritten, or printed.) The equivalence of symbolic expression and verbal expression is actually consistent with the First Amendment's original meaning:

1. Late 1700s and early 1800s courts treated symbolic expression and verbal expression as functionally equivalent when it came to speech restrictions, such as libel law, obscenity law, and blasphemy law. Symbolic expression, for instance, could be just as libelous as verbal expression.

2. This logic and tradition of equivalence extended to speech protections as well as speech restrictions. Paintings, liberty poles, and other symbolic expression (even outside the "press") appeared to be no less and no more protected than spoken and printed words. In fact, the first decision in any American court striking down government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.

3. And this equivalence of symbolic and verbal expression fit well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that "the freedom of speech, or of the press" was tantamount to Madison's original draft of the clause: the "right to speak, to write, or to publish." And the term "to publish" included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.

I doubt the Framers of the First Amendment focused much on this issue: Then as now, symbolic expression was much less important than verbal expression (though, as I'll note shortly, it was still quite commonplace). But if you asked lawyers of the era whether symbolic expression was covered by the new provision, they would likely have answered "yes," as the sources I cite above suggest.

This doesn't tell us whether the Framers would have understood any particular form of symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing, as constitutionally protected. Perhaps, for instance, they would have recognized a special exception for flag desecration, though I doubt it. Perhaps they would have concluded that some forms of expression, whether symbolic, printed, or verbal, were so likely to lead to breaches of the peace that they merited restriction; it's hard to tell. Perhaps some would have concluded that any subsequent punishments were permissible, so long as they were imposed by juries.

Perhaps they would also have concluded that symbolic expression is protected only against laws that target it precisely because of what it expresses, and not against generally applicable laws (such as public nudity laws) that incidentally cover expressive conduct. The original meaning of the First Amendment is in many ways hard to determine.

But in any event, in my experience many critics of the Court's symbolic expression cases don't seek a wholesale rejection of eighty years of broadly libertarian Supreme Court precedent on the freedom of speech. Rather, they criticize only the symbolic expression doctrine, which to them seems the most clearly inconsistent with text and original meaning, and which can be reversed without vast shifts in the law.

And on this narrow question — was symbolic expression understood as legally tantamount to verbal expression, and thus protectable by "the freedom of speech, or of the press" even when it wasn't published through spoken words or through printing? — the original meaning is comparatively clear. Seventy-five-year-old Supreme Court precedent and original meaning point in the same direction: Symbolic expression and verbal expression ought to be equally covered by the First Amendment.

Alix Cavanaugh (mail):
Wow! A law review article with pictures ...

Personally I favour "Cam. Stell." for Star Chamber cites, but I'm old-fashioned.

FWIW, on "riding Skimmington": there's a classic article about the practice called "Rough Noise" in E.P. Thompson, Customs in Common.
9.15.2008 3:06pm
PersonFromPorlock:
I kind of like the idea that the argument, beloved of gun controllers, of "what kind of message does it send [to, for instance, allow non-police to possess weapons]...?" suggests a First Amendment RKBA.
9.15.2008 3:16pm
Dilan Esper (mail) (www):
It's worth noting that Scalia is an originalist, and famously provided the fifth vote to strike down flag burning laws. He didn't write an opinion in that case, and I'd be curious to find out what his thinking is on the originalist aspect of this question (or whether he simply thinks that under the Court's modern free speech doctrines, burning the flag is clearly protected).
9.15.2008 3:42pm
docjim505 (mail):
The problem is that the right to free speech, like just about any other right, is not absolute. Both the courts and the legislature (state or federal) have roles to play in determining what "speech" is permissible. The legislature, as the lawful representatives of the people, may determine that popular opinion does not allow certain forms of free speech / expression, such as pornography, flag burning, racists tracts, incitement to riot or sedition, etc. It falls to the court to determine not only whether such limits are constitutional, but in a real sense prudent. Were there not some cases decided during World War I in which the SCOTUS found that anti-war pamphlets and other similar "speech" were NOT protected under the First Amendment?
9.15.2008 3:44pm
r.friedman (mail):
NUDE DANCING FOREVER
9.15.2008 3:49pm
Oren:

Were there not some cases decided during World War I in which the SCOTUS found that anti-war pamphlets and other similar "speech" were NOT protected under the First Amendment?

There indeed were: Debs v US, e.g., in which defendant was convicted and imprisoned for giving a political speech. The precedent was repudiated quite strongly a few decades later.
9.15.2008 4:19pm
David Muellenhoff (mail):
Sweet! Just in time for the Nordyke case (presenting or attending a gun show a protected 1st Am. activity)!
9.15.2008 4:37pm
Kazinski:

This doesn't tell us whether the Framers would have understood any particular form of symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing, as constitutionally protected. Perhaps, for instance, they would have recognized a special exception for flag desecration, though I doubt it.

Very likely they would have understood tarring and feathering as the proper symbolic response to such symbolic speech. It is kind of hard to equate the legal consequences of offensive speech in the late 18th or early 19th century with today. In an age where horsewhipping was not a metaphor, and duels common enough that they couldn't be discounted as out of the question, there were more avenues for making one's outrage at outrageous speech manifest. But judging from the newspapers and controversies of the time, they didn't suppress such speech completely.

I'd like to see there be more consequences for speech that goes beyond the bounds of accepted discourse, if for example demonstrators at the Democratic and Republican conventions want "another Chicago '68". Well then, give them another Chicago '68. Letting the protesters play by one set of rules, secure in their persons, while they break windows, turn over trash cans, and assault delegates is absurd. While identifying individual perps in a courtroom later may be problemmatic, I trust the police to positively identify them with their truncheons at the time of the offense.

Don't get me wrong, I do believe orderly speech deserves full protection, but when speech goes beyond those bounds, I'd like to see a rougher remedy.
9.15.2008 4:38pm
Oren:
Kazinski, the problem is separating out the "disrupters" from the protesters in a way that preserves the rights of the former. Many of the measures aimed at discouraging the former are quite effective at chilling (or in the case of pepper spray, burning) the latter.
9.15.2008 4:47pm
Nigel Kearney (mail) (www):
I'm not sure that opponents of legal flag burning would even accept that it counts as "expression".

I'm in New Zealand and it may be different in the US, but here when people burn the flag they also have a sign indicating what their real message is. The sign communicates the message and the flag burning just attracts attention through its offensiveness and increases the chance of the actual message being reported in the media.

If the first amendment protected all actions that do not express any message and cause harm merely by being offensive, including nudity and obscenity, then it would be logical to also protect flag burning. But it doesn't.
9.15.2008 4:48pm
Kazinski:
Oren,
As one that spent 4 days in downtown Seattle during the WTO riots of 2000, I can attest that if you are paying attention that you know when you are in the company of idiots and when you are in the company of peaceful protesters. I had a lot of fun that week, there is something primal about protest chicks, but I never even got a whiff of tear gas, even though the building I work at is 2 blocks from the convention center and the corner of the block where I work was the site of one of the largest street battles during the riot. It isn't hard to stay out of trouble when you are not looking for it.
9.15.2008 5:46pm
Richard Ragsdale (mail):
The first amendment right to peaceably assemble recognizes that conduct (assembling) is "speech," or at least a predicate for speech, such as printing. As in all modes of communication, the symbolic category (flag burning, nude dancing) reminds us that we pay a price for free speech "that matters" by necessarily permitting speech with marginal social value. The alternative is much worse.
9.15.2008 5:48pm
Angus:

As in all modes of communication, the symbolic category (flag burning, nude dancing) reminds us that we pay a price for free speech "that matters" by necessarily permitting speech with marginal social value.
As r.friedman would probably agree, I consider nude dancing to have far more social value than anything McCain or Obama have to say.
9.15.2008 5:56pm
docjim505 (mail):
Richard Ragsdale - As in all modes of communication, the symbolic category (flag burning, nude dancing) reminds us that we pay a price for free speech "that matters" by necessarily permitting speech with marginal social value. The alternative is much worse.

Excellent point.
9.15.2008 6:34pm
wb (mail):
Perhaps this point of view explains why the ACLU and Larry Craig's lawyers are arguing that "toe-tapping" is protected speech.
9.15.2008 6:53pm
Oren:

It isn't hard to stay out of trouble when you are not looking for it.

Perhaps, but I'm not just talking about direct trouble, I'm talking about policies that limit the expression of the protesters (e.g. where they can march, what they can carry) in order to better combat the disrupters.

As always, a balancing approach is required -- some policies that do, in fact, limit expression will undoubtedly be required to effective combat the disrupters. How much weight is put on each result largely determines the result (e.g. where you sit determines where you stand).
9.15.2008 7:17pm
Malvolio:
I'm not sure that opponents of legal flag burning would even accept that it counts as "expression".
Then they would want to make the burning the flag of, say, Westphalia or Iran just as illegal as burning Old Glory? If not, they are counting it as "expression".
Perhaps this point of view explains why the ACLU and Larry Craig's lawyers are arguing that "toe-tapping" is protected speech.
The police were arguing that it was crime-facilitating speech (that is, speech but not protected speech).

And I don't see how nude dancing is speech, but there are lot of people I rather see dance nude than hear speak. I'm not even going to mention the governor of Alaska.
9.15.2008 7:43pm
Dilan Esper (mail) (www):
Perhaps this point of view explains why the ACLU and Larry Craig's lawyers are arguing that "toe-tapping" is protected speech.

I may be feeding the trolls here, but it isn't so much that it is protected speech (though I haven't read the briefs and perhaps they are making that argument) but rather that it isn't enough to base a criminal charge on. In other words, even if we assume that Larry Craig was certainly in that bathroom for that purpose, is tapping toes and sliding feet and putting one's hand under the restroom divider a criminal solicitation of lewd conduct, and should it be?
9.15.2008 8:05pm
p. rich (mail) (www):
symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing

The problem with your argument, Pookie, is that all "expression" is nor necessarily created equal. For example, if I disagree with you and slap you silly, why am I not just expressing my disagreement? The answer is obvious: because this form of "expression" has been made illegal, as could be any other.

What you didn't address at any length (no big surprise) is the specific question of flag burning in an earlier context, conveniently grouping it with several much more mundane examples. Perhaps, for instance, they would have recognized a special exception for flag desecration, though I doubt it. You wish. My guess is that if you walked out onto the commons in 1790 and burned an American flag, you quite likely would have ended up dead or severely physically punished. And rightly so. Many people have died for the right to fly that flag with all it represents. Its desecration obviously carries no weight with you and your lawyerly ilk.
9.15.2008 8:46pm
Eugene Volokh (www):
I'm sorry, but who's Pookie?

Also, it's far from obvious that slapping people is unprotected because it is a "form of 'expression' [that] has been made illegal, as could be any other." The whole point of the First Amendment is that there are some things the government may not make illegal. I agree, of course, that slapping may be made legal with no First Amendment problem -- but that's clear because the slapping causes harms entirely unrelated to the message it sends. The question is whether there are also no First Amendment problems with "mak[ing] illegal" flag burning, flag waving, or for that matter carrying hand-letter signs expressing this view or that. My argument is that the original meaning of the First Amendment would apply to all three the same way, and the same way that it would to making a speech or printing a pamphlet.

As to your guess about burning of the American flag, you might be right that people might have reacted violently to such a burning (though probably not by killing). But that people are willing to react violently to some speech doesn't dispose of the question whether it's constitutionally protected against legal punishment.
9.15.2008 8:59pm