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A Brief Note on Symbolic Expression During the Framing Era:

Before I get to my specifically legal argument about symbolic expression and the original meaning of the First Amendment, I wanted to say a bit about the kinds of symbolic expression that were commonplace in England and especially America of that time. Of course, the common nature of such symbolic expression doesn't by itself prove that such expression is constitutionally protected; but it helps show why the evidence that I have come up with makes sense in light of the Framing era's actual practice of using symbolic expression interchangeably with words. Plus some of the items are quite a bit of fun.

To begin with, one of the leading English holidays, Guy Fawkes Day (called Pope Day in the colonies), revolved around processions and burning effigies. John Jay, the coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, "wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold" -- a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors.

And sometimes the effigies became parts of more elaborate, and at times self-consciously humorous, displays. In the first major protest against the Stamp Act, colonists placed on a "Liberty Tree" (in that case, a large elm) various effigies, including a "devil . . . peep[ing] out of a boot -- a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act"; "[t]he effigies were then paraded around town, beheaded, and burned."

Puns were commonplace in other contexts as well. For instance, English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is toasting the "King over the Water," which is to say the Pretender, who lived in exile in France.

Numbers often played a role in symbolic displays. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: Forty-five toasts -- representing issue 45 of Wilkes' North Briton, which got him prosecuted for seditious libel and made him a star -- were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was "eaten from plates marked 'No. 45'"; the Liberty Tree in Boston had its branches "thinned out so as to number forty-five." Note also that here, as well as in some of the other examples, literal speech (the words of the toasts) was freely mixed with symbolic expression.

"Funeral Procession of the Black Cockade," by Lewis Miller (ca. 1800)

I haven't seen the Framers wearing symbolic armbands, but their equivalent were cockades worn in hats. Thus, for instance, many 1790s Americans wore colored cockades to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung as a mockery of the other side's cockades. Some conducted mock funerals for the other side's cockades (see the picture above). Mock funerals occurred in other contexts as well: For instance, colonists conducted funeral processions for liberty as protests against the Stamp Act.

"Raising the Liberty Pole," by Frederic A. Chapman (1875)

Flags and liberty poles (see the picture above) also played a role. (Liberty poles were often described as "standards," in the sense of the equivalents of flags.) From the pre-Revolutionary era to the 1790s, Americans raised liberty poles as symbols of opposition to what they saw as oppressive conduct by the government. They burned "Liberty or Death" flags stripped from their adversaries' liberty poles. They planned elaborate pantomimes criticizing their Congressmen, with displays of the French and American flags crowned with liberty caps, an upside-down British flag, and a gallows, followed by the burning of the British flag.

And burning played a major role as well, as I've already suggested. After the Revolution, Americans burned copies of the Sedition Act and other federal laws. They burned copies of opponents' publications that they saw as libelous, echoing the English legal practice of having libels be burned by the hangman.

So it is understandable that a nation that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression. Likewise, it makes sense that the protection for symbolic expression on the Supreme Court dates back to the very first Supreme Court decision striking down any government action on free speech or free press grounds. The Court in that 1931 case simply casually assumed that symbolic expression was as protected as verbal expression, and treated the display of a red flag as legally tantamount to antigovernment speech. But its assumption was consistent with the First Amendment's original meaning: The equivalence of symbolic expression and verbal expression has been part of American practice -- and, as I'll try to show below, American law -- since the Framing era.

Dilan Esper (mail) (www):
This is an excellent post.

I wonder how people who say the First Amendment doesn't protect symbolic expression would feel about something like the Tinker case, but taken outside the high school setting. In other words, suppose a jurisdiction, knowing that black armbands were a method of silently protesting the Vietnam War, banned them. Would these folks say this is constitutional?

There seems to me to be two things going on in the anti-symbolic speech arguments:

1. A lot of symbolic speech is seen as having little value or being harmful, like flag burning and nude dancing; and

2. People want a bright line rule for First Amendment protection, and the symbolic speech doctrine requires that courts evaluate the gray areas of the communicative aspects of expressive conduct, which means no bright line rule.

The problem is when you actually consider what would actually receive no protection if you took symbolic speech out of the ambit of First Amendment protection, it would be a substantial loss of freedom to protest.
9.15.2008 6:47pm
Randy R. (mail):
I would argue that flag burning has tremendous value as a form of symbolic speech. If you have any doubt about it, consider the sentiments of those opposed to it. Otherwise, I do agree that symbolic speech is terribly important.

Especially today, we have symbols that stand in for a whole host of words, and symbols can often be seen as a shorthand. Consider the peace symbol -- it is just as much a statement of anti-war as saying "I am against war." As such, it should be protected. Likewise, when a person wears a rainbow flag, it says, I support gay rights.
9.15.2008 7:39pm
Randy R. (mail):
FYI: The city of Buffalo had a Liberty Pole as late as the 1930s. The citizens built one early in the 19th century, but some of them burned or weathered to the point that they needed to be replaced, and each time, it was replaced with a taller one, the final one being erected somewhere around the turn of the century.

I don't know anyplace that currently has a liberty pole.
9.15.2008 7:40pm
Oren:

I wonder how people who say the First Amendment doesn't protect symbolic expression would feel about something like the Tinker case, but taken outside the high school setting. In other words, suppose a jurisdiction, knowing that black armbands were a method of silently protesting the Vietnam War, banned them.

Clayton Cramer is on record saying that a state could ban red t-shirts, if it so desired. I can dig up the archive but I'm sure he won't dispute it. Clayton is a smart guy, no doubt, but that particular exchange still perplexes me.
9.15.2008 8:19pm
Oren:
Actually, turns out that my memory sanitized it for me. His original statement was far worse:


Me: So the State could order that everyone wear red and nothing but red?

Clayton: Yup, unless the state constitution limited their authority.
9.15.2008 8:20pm
Arkady:

So it is understandable that a nation that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression.


Right. And then there were those louts who tossed all that tea into Boston Harbor. If that wasn't a big FU to the Crown, it's hard to see what could be. Of course they were criminals, so maybe this doesn't count.
9.15.2008 8:31pm
Eugene Volokh (www):
Arkady: I deliberately avoided the tea party and other examples of expression that caused noncommunicative harms, such as destruction of others' property. I'm quite sure that no-one in the Framing era would have thought that destroying others' tea would be constitutionally protected behavior (even if they thought that under the circumstances it was a morally legitimate act of resistance to oppression).
9.15.2008 8:45pm
Arkady:
I understand Eugene (criminals, smugglers, etc.). But the episode was seminal in the run up to the Revolution, and I think it does show that a strong propensity towards expressive action existed in the colonies. Those folks could be a rowdy bunch. But I take your point.
9.15.2008 9:18pm
Jmaie (mail):
I don't know anyplace that currently has a liberty pole.

Liberty has been taken for granted for quite some time now. Recent administration initiatives have raised concerns amongst some, but the general public generally gives it no thought. Unfortunately.
9.15.2008 9:59pm
Asher (mail):
Sounds like fun times, at any rate.
9.15.2008 10:29pm
Evelyn Blaine (mail):
I seem to recall reading something once about Londoners having coats made with brass buttons that said "John Wilkes, beef, and liberty". A laudable sentiment ...
9.16.2008 12:15am
dew:
I don't know anyplace that currently has a liberty pole.

Rochester, NY has (or had not too many years ago) a large liberty pole.
Bedford, MA erects a wooden liberty pole every April and tops it with a liberty cap - a liberty cap was usually, in colonial times at least, a red cap (often knit), sometimes with "liberty" or similar words knitted in. American colonials borrowed the concept of a liberty cap from the Romans, who seemed to have gotten it from the Greeks. French revolutionaries took the idea from us, and made it a national symbol.
9.16.2008 9:38am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 09/16/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
9.16.2008 3:18pm
BZ (mail):
What if "red" were the equivalent of a gang sign? Could the State ban it then?

I recall wearing a baseball cap in a Philadelphia cheesesteak place when a busboy rushed up to me to say that it was illegal. The cap said "FLC," which apparently was a particularly-reviled gang name. The fact that my hat actually said "Ft. Lewis College" (a historically-Native American institution of higher education in Colorado which has recently repurposed into an institution with special expertise in educating dyslexics) fell on deaf ears (eyes?).
9.17.2008 10:32am