Symbolic Expression in Late 1700s and Early 1800s Speech Restriction Law:

Let us begin our view of symbolic expression in Framing-era law by looking at speech restrictions. We'll get to speech protections in coming posts, but the law of speech restrictions is relevant because speech restrictions and speech protections were seen as closely related during the era: The restrictions were recognized exceptions from the constitutional freedoms, and the freedoms were recognized as being constrained by the traditional restrictions.

Speech restriction law of the late 1700s and early 1800s took a functional view of symbolic expression, and generally treated it the same as verbal expression. As William Hawkins' Pleas of the Crown (1716) explained -- in language quoted in the famous American seditious libel trial of John Peter Zenger -- "[S]ince the plain meaning of [defamatory] scandal as is expressed by signs or pictures[] is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking, as that which is expressed by writing or printing, why should it not be equally criminal?"

We see this equivalence as early as Sir Edward Coke's report of De Libelli Famosis (1606):

Every infamous libel, [either is] in scriptis, [or] sine scriptis [i.e., without writing]; a scandalous libel in scriptis when an Epigram, Rhime, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published, 1. Verbis aut cantilenis: As where it is maliciously repeated or sung in the presence of others. 2. Traditione, when the libel or copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis may be, 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a Gallows, or other reproachful and ignominious signs at the parties door or elsewhere.

Later sources constantly repeated these two categories of symbolic expression to verbal expression. Blackstone's Commentaries (1765) defined libel to include "pictures, signs, and the like" alongside verbal expression; "signs" was a literal translation of Coke's "signis," apparently in the sense of "symbols," such as Coke's gallows. Hawkins' Pleas of the Crown took the same view as Blackstone. American sources, which often cited Blackstone and sometimes Hawkins, naturally followed suit. This meant libel law covered a wide range of symbolic actions, processions, and pictures, for instance:

  • burning an effigy of a person,
  • hanging an effigy of a person,
  • engaging in a "procession carrying a representation of the plaintiff in effigy,"
  • painting a man "with a fool's cap, or coat, or with horns, or . . . asses ears," or "playing at cudgels with his wife,"
  • "placing a wooden gun at an officer's door, thereby implying cowardice,"
  • hanging "Wool upon a Tree near the High-way, before the Plaintiff's Dwelling-house," which was understood to suggest that the plaintiff was a wool thief,
  • lighting a lantern outside a person's house, implying the house was a brothel,
  • "carrying a fellow about with horns, and bowing at [the plaintiff's] door," implying the plaintiff's wife is unfaithful,
  • displaying an etching of plaintiff's head, with an iron nail driven into his ear and scissors attached to the nail, implying the plaintiff is a perjurer,
  • and "riding Skimmington" (see the picture below), a "ludicrous cavalcade, in ridicule of a man beaten by his wife," consisting "of a man riding behind a woman, with his face to the horse's tail, holding a distaff in his hand, at which he seems to work, the woman all the while beating him with a ladle; a smock displayed on a staff is carried before them as an emblematical standard, denoting female superiority: they are accompanied by what is called the rough music, that is, frying-pans, bulls horns, marrow-bones and cleavers, &c."

"Hudibras Encounters the Skimmington," by William Hogarth & Thomas Cook (1802)

Symbolic expression and verbal expression were likewise equivalent under the law of sedition. They were equivalent under the law of obscenity, sometimes called "obscene libel": "In [obscenity law], as in private libels and slanders, the communication may be, not only by writings and words, but also by exhibitions, symbols, and pictures." They were equivalent under the law of slander, to the extent that some impromptu symbols were treated as tantamount to spoken slander (the examples above were of more elaborate symbols that were treated as tantamount to written libels).

And symbolic expression and verbal expression were equivalent under the law of blasphemy, or "blasphemous libel." Though blasphemy was generally seen as consisting of "oral or written" "words," a leading blasphemy case suggested the crime could equally be committed by burning an effigy of Jesus Christ; depicting the Virgin Mary as "naked . . . in the act of prostitution"; or, in a hypothetical majority Muslim or Jewish community, "gibbeting the image of the prophet," "burning the koran by the hands of the common hangman," "burning the prophets in effigy," or "maliciously stamping the pentateuch under foot."


Speech restriction law of the late 1700s and early 1800s took a functional view of symbolic expression, and generally treated it the same as verbal expression.

I think it's of interest to note that when Blackstone wrote his commentary, sign language as practiced by the deaf, was in its infancy. The Wiki article on sign language, in the History of section, says:

The written history of sign language began in the 17th century in Spain. In 1620, Juan Pablo Bonet published Reducción de las letras y arte para enseñar a hablar a los mudos (‘Reduction of letters and art for teaching mute people to speak’) in Madrid. It is considered the first modern treaty of Phonetics and Logopedia, setting out a method of oral education for the deaf people by means of the use of manual signs, in form of a manual alphabet to improve the communication of the dumb or deaf people.

From the language of signs of Bonet, Charles-Michel de l'Épée published his alphabet in the 18th century, which has arrived basically unchanged until the present time.

In 1755, Abbé de l'Épée founded the first public school for deaf children in Paris; Laurent Clerc was arguably its most famous graduate. He went to the United States with Thomas Hopkins Gallaudet to found the American School for the Deaf in Hartford, Connecticut.[1] Gallaudet's son, Edward Miner Gallaudet founded the first college for the deaf in 1857, which in 1864 became Gallaudet University in Washington, DC, the only liberal arts university for the deaf in the world.

The success of sign language among the deaf as a language brings into question the emphasis on the verbal as the (necessarily) fundamental mode of linguistic communication. And, indeed, the use of the nonverbal in everyday life as a mode of communication is so commonplace, that it goes unremarked (e.g., waving goodbye to someone, giving someone the finger, holding up your hand to stop someone.) It is also of interest to note that Wittgenstein is said to have been jolted out of his Tractatarian view of language by an experience he had with the Italian economist Piero Sraffa. The story is that Wittgenstein was arguing that every propostition must have a grammar, a logical form. Sraffa then made the Neapolitan gesture of disgust: a flicking of the fingers under the chin, and asked Wittgenstein what was the grammar of that? This experience led Wittgenstein to abandon the picture theory of language he argued for in the Tractutus. Malcom writes in his memoir of Wittgenstein:

Sraffa's example produced in Wittgenstein the
feeling that there was an absurdity in the insistence that a proposition and what it describes must have the same 'form'. This broke the hold on him of the conception that a proposition must literally be a 'picture' of the reality it describes.'" [Malcolm, Wittgenstein: a Memoir, pp. 58-59]
9.16.2008 9:31am
John (mail):
Eugene's post is suggestive, but the question is what the word "speech" means in the Amendment.

While it may be that "libel" and related terms embraced non verbal, expressive conduct, it is not so clear that the word "speech" does. Is this a distinction without a difference? It is not clear from the necessarily limited space Eugene devotes to the matter above.
9.16.2008 11:03am
BZ (mail):
I have found these posts and your article to be fascinating, well-researched and persuasive. Which is not to say that I agree with all that is expressed.

Like many such analyses, and many "originalists'" analyses of similar points, it might be possible to improve the analysis by enhancing the author's ability to actually place herself in the mind and time of the Founder whose writing is being analyzed. I was, for example, much pleased to see the many citations in your article to works actually written during the period, as opposed to the lazier approach of relying on someone else's writing about the writing (what one might call meta-analysis).

But the citations were generally to finished works intended to be published. In our modern mindset, with easy cut-and-paste, we forget the agony and evolution involved in crafting publications in those times when print was set by individual letters placed in careful rows.

This is not a critical weakness, as much (perhaps the most) important information is delivered through such works. That was their intent, and the best has survived precisely because it is successful in conveying the true thought.

But the essence of your question is actually whether different forms of communication carry the same constitutional weight. And isn't human communication essentially the attempt to stimulate and approximate shared experiences for the purpose of transferring both information and a structure for using that information? In other words, shared experience is at the heart of communication. Since a vast portion of the human brain is devoted to processing visual information, symbols can be as useful for that purpose as words. For words on a page are only symbols of sounds, and both are symbols for thought and action.

Here it is possible to find the shared experience between our modern minds and that of the Founder of whom we write. You might be amazed at how easy it is to access shared experience and contexts if you read the original thinking. That is difficult, but not impossible, in many cases. For some of the most important evidence on this topic, particularly of libel, slander and similar personal symbolism, is not in the published scholarly works, but in the personal letters. The hallmark of thinking in that era was as much in letters as in books and pamphlets.

For example, for a particularly poignant example of defamation, see Nancy Morris' long letter to John Randolph, Jan. 16, 1815. Paul M. Zall, Founding Mothers, Nat'l Center for the Study of the Founders, 1991, 103. When Gouverneur Morris married Ann Cary "Nancy" Randolph of Virginia, there were two scandals: that the international playboy married at all, and that he married a younger worman trailed by clouds of innuendo, rumor and scandals of adultery and child-killing.

The point is that symbolism for these people was both personal and intense; reputation and its preservation were critical, and that centrality was reflected in the law, and in the Constitution. It is not the same today.

It is, I think, the difference between reading about the law, and putting the law into the context of the facts. In Southern California, you have a unique world-class resource to do just that sort of research. The Huntington Library, headed by Prof. Steven Koblik, my long-ago thesis advisor, has just the sort of collection and scholars you might talk to about just this point. At the Huntington, or through its resources, you can talk to someone who has read George Washington's, John Adams's, Ben Franklin's, actual letters -- not the printed version, but the real letter -- and can show you the strike-outs, the marginal notations, the write-overs, which give the reader a better sense of what was intended. I have used some of these scholars' assistance in briefs and analyses, and have found the resulting explanations of ancient texts much clearer and more useful.

But if you choose to take this path to learn more about the Founders, I urge you to hurry, as many of these scholars are quite retired, and we are losing them all too swiftly.
9.16.2008 11:30am
David Chesler (mail) (www):
I fear our society has suffered a loss that IM l33t has replaced displaying an etching of plaintiff’s head, with an iron nail driven into his ear and scissors attached to the nail, implying the plaintiff is a perjurer.
9.16.2008 12:22pm
Hogarth was indeed very lucky that there was toleration of the lower-classes doing lower-class things in a very public way.
9.16.2008 12:46pm
I believe complicated and rather long clips of old cartoon shows having the audio track replaced in order to make a rather obnoxious point would be the appropriate comparison... Or possibly, politically oriented LOLCats. ( AKA "cat macros", a term which I find offensive but for some reason "LOLCats" is not... possibly I am broken )
9.16.2008 2:06pm
Jon Roland (mail) (www):
Much of the language of rights in the Constitution and Bill of rights were reactions to violations of those rights, so can be better understood by examination of writings of the era that protested the violations. From that, we can reasonably find that the "speech" and "press" rights of the First Amendment were reactions to the English statutes against libel, sedition, and treason. The Framers expressed this opposition in the First Amendment and in the restricted definition of "treason" they adopted.

It is important to keep in mind that in that era dictionaries were not yet established as the authoritative way to convey the meanings of words, or even as particularly useful guides for further inquiry. It was common for the same word to carry multiple meanings the reader was expected to choose among from context. For example, it was common to use the same word for an activity and for those engaged in that activity, or for the product of that activity, and this idiom continues to this day, with some confusion.

However, in our dictionary-obsessed age, we may reasonably define "speech" to be the production of any form of communuication, and "press" the distribution of it beyond the immediate vicinity of the author. Thus, many of the court precedents on "speech" should probably really be mainly about "press".

I strongly advise modern students to approach the Constitution as though they were learning a foreign language. Contrary to what many think, much of the Constitution is not really written to be understood by ordinary, non-legal-educated people. Terms like “due process” and “jury” were terms of legal art with a vast body of cases and treatises behind them. Americans in the Founding Era were much more law-literate than are people today, but even the Founders had to hit the books mentioned above to find out what they were saying when they drafted the Constitution. So must we to understand what they wrote. There are no shortcuts.
9.16.2008 2:09pm
Very interesting post. Thanks EV for bringing that historical perspective up.
9.16.2008 2:22pm