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).

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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.