The view that symbolic expression is functionally equivalent to verbal expression, and therefore should be treated the same, would logically apply to constitutional speech protections as well as to speech restrictions. And this is indeed what several sources from the 1790s to the 1830s, and from several states, assume.
(Sources from the first half of the 19th century are generally considered to be probative of the original meaning of the Constitution, and have often been used this way by the Supreme Court. Though there's always the risk that there was a major change in understanding of a provision in the decades following 1791, in this instance I have not found any evidence that this happened. Early 19th century sources are also relevant to understanding the original meaning of the First Amendment in 1868, when the Fourteenth Amendment was enacted, since it is the Fourteenth Amendment that has been read as applying the First Amendment to the states. Likewise, I rely on cases and commentaries related to state constitutional provisions because they were generally viewed as similar in scope to the federal ones, and the law of freedom of the press was seen as a national body of law, albeit with occasional differences among jurisdictions. The Supreme Court has often relied on early interpretations of state constitutional provisions as elucidating the legal principles that were also implemented in federal constitutional provisions.)
1. The very first American case in which a speech restriction was held unconstitutional on free speech/free press grounds -- the 1839 New York Brandreth v. Lance decision -- treated paintings as tantamount to printed words. (During the late 1700s and early 1800s, very few speech-restrictive actions were set aside by courts on constitutional grounds. Most speech restrictions of the era were judge-made, so the judicially developed constitutional rules understandably fit with the judicially developed restrictions.) Brandreth set aside a lower court injunction against an allegedly libelous unauthorized biography, reasoning that:
[T]his court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. (2 R. S. 737, § 1, and Revisers’ note.)
This analysis was based on constitutional principles: “Liberty of the press” was the phrase used in the New York Constitution, and the cited Revisers’ Note made clear that the cited statute was seen as implementing the constitutional free speech/press provision.
Immediately after the just-quoted sentence, the Brandreth court had to deal with the contrary precedents that did authorize injunctions of alleged libels. A few were easily disposed of: Some were from the much-despised Star Chamber of the early 1600; another was from the notoriously oppressive Chief Justice Scroggs, and the Brandreth court pointed out that “[t]he house of commons . . . considered this extraordinary exercise of power on the part of Scroggs as a proper subject of impeachment.”
But the court then had to consider a much more recent case: an 1810 English decision stating that an injunction could indeed be issued against “exhibition of [a] libelous painting.” If the constitutional protections were understood as covering only verbal expression, or even verbal expression plus pictures printed using a printing press, the painting case could have been easily distinguished.
Instead, the Brandreth opinion expressly rejected the reasoning of the painting case, on the grounds that the decision “excited great astonishment in the minds of all the practitioners in the courts of equity,” and “must unquestionably be considered as a hasty declaration, made without reflection during the progress of a trial . . . and as such it is not entitled to any weight whatever.” The court treated the painting case as being a “case of the like nature” to the case about the published book -- and as being equally subject to the “liberty of the press.” Symbolic expression (paintings) was viewed as legally equivalent to verbal expression (biography) where free press protections were concerned.
2. Likewise, consider Justice Morton’s dissent in Commonwealth v. Kneeland, an 1838 Massachusetts blasphemy case. “[T]he liberty of the press,” Justice Morton wrote -- and the official Reporter of Decisions echoed in the summary of the majority opinion -- did not “restrain the legislative power in relation to the punishment of injuries to individuals, or of the disturbance of the peace, by malicious falsehoods or obscene or profane publications or exhibitions.” “[O]bscene or profane . . . exhibitions” likely referred to paintings or displays; Justice Morton was treating such nonverbal expressions as tantamount to verbal expressions, which lose their protections because they are “obscene or profane” and not because they are “exhibitions” rather than spoken or printed words.
Justice Morton similarly derided plaintiff’s freedom of the press argument by saying,
Under [the state constitution’s Liberty of the Press Clause], the defendant claims for every citizen a right to publish, in any form, by printing or pictures, whatever he pleases, without liability to punishment, . . . [n]o matter how obscene, how profane, how blasphemous, how revolting to the sentiments of the community, [or] how shocking to their notions of decency and decorum.
The claim of a “right to publish, in any form, by printing or pictures” wasn’t rejected on the grounds that “press” didn’t cover “publish[ing] . . . by . . . pictures,” a phrase that would have included exhibition of hand-drawn material. Rather, symbolic expression was treated the same way as the “printing” of verbal profanity and blasphemy, such as the printed blasphemous words involved in Kneeland itself.
3. The report of Mezzara’s Case, apparently the earliest American case involving symbolic libel -- there, a painting of plaintiff with ass’s ears -- likewise indicates that free speech and press principles were seen as applying to such symbolic expression. The reporter (Daniel Rogers, a New York lawyer) followed the case with a note hypothesizing what would happen if the painting had been an apt commentary on the subject’s folly and lack of patriotism. In such a situation, the reporter wrote, “if the painter could show the truth of the matter in evidence, as before described, and that he published and exhibited the picture, ‘with good motives and for justifiable ends,’ . . . would he not be justifiable under our statute?”
The statute the reporter cites was passed in the wake of the New York court’s even division in People v. Croswell on whether truth was a constitutionally required defense in libel prosecutions. The statute implemented Chancellor Kent’s view of the constitutional rule, and was seen as an important protection for the liberty of the press. And just four years after Mezzara’s Case, at the next New York constitutional convention, the statute’s provisions were adopted as part of the New York Constitution. The reporter thus saw nothing odd in treating a painting as protected by free speech/press principles, just as the law saw nothing odd in treating a painting as punishable under libel law principles.
4. We see the same equivalence of symbol and verbal expression in both sides’ arguments in Respublica v. Montgomery, a 1795 case arising out of the Whiskey Rebellion. Montgomery was a justice of the peace who was prosecuted for failing to actively help suppress a supposed riot; the only part of the riot discussed in the report consisted of installing a liberty pole during the Rebellion.
Liberty poles (see the picture above) were tall poles that were crowned with flags or “liberty caps”; they originated before the Revolution as symbols of hostility to the assertedly oppressive English government, but by the 1790s, they had become symbols of hostility to asserted oppression by American government. (Supporters of the government labeled liberty poles “sedition poles.”)
The defense lawyer raised the freedom of speech as part of his argument for dismissing the prosecution; as the reporter of decisions summarized the argument,
Every citizen had a right “to the free communication of his thoughts and opinions” while his views were upright; and it was difficult to draw the line, when “the abuse of that liberty” should be said to begin, and the first tinge of criminality appear. It was essential to the freedom of a republic, that people should speak their minds on laws and all public transactions, and their conduct in this particular should not be scanned too nicely. The mere erection of a liberty pole was innocent in itself; and while the minds of the multitude were bent in that direction, the defendant might perceive the inutility as well as danger of opposing their avowed purpose.
The prosecutor likewise treated the raising of a liberty pole as something potentially covered by the “freedom of speech,” though in this instance unprotected because it was seditious:
The proofs are here sufficiently clear to warrant an information. Though freedom of speech is secured to us by the constitution, yet we are responsible for an abuse of that liberty. The people may meet and discourse on public measures, and the public mind may thus be illustrated and informed; but if they meet for seditious purposes, or when met, go into seditious resolutions, they are amenable to the law. Credulity itself could not be brought to believe, that the defendant, a justice of the peace, was ignorant of the transactions in the western counties, or of the traitorous insurrections existing there . . . . Could the defendant be so unconscious of his duty, as not to feel that his oath of office required of him his honest endeavours to preserve the peace, suppress riots, and prevent the erection of liberty poles, “the avowed standards of rebellion?” . . .
The prosecutor’s argument was that symbols such as liberty poles could be “an abuse of that liberty [freedom of speech]” when they signify and promote rebellion. This presupposes that the use of other symbols might be within the “freedom of speech . . . secured to us by the constitution,” so long as the users of the symbols don’t “abuse . . . that liberty” by using them for seditious purposes.
The reporter’s paragraph-long summary of the court’s opinion doesn’t mention the freedom of speech. But the court’s conclusion that “setting up a pole” was “design[ed to give] aid to the insurgents” and was therefore punishable is consistent with the parties’ view that symbolic expression is tantamount to verbal expression; speech designed to give aid to rebels would have been seen as punishable as well.
5. Judge Alexander Addison’s 1798 charge to a Pennsylvania state grand jury on “Liberty of Speech and of the Press” likewise endorses the equivalence of symbolic expression and verbal expression, which is especially noteworthy because Judge Addison had earlier specifically dealt with one form of symbolic expression (again, liberty poles).
The Pennsylvania Constitution’s free speech/press provisions expressly mentioned, among other things, “[t]he free communication of thoughts and opinions”; and Judge Addison defined “communicat[ion]” of sentiments as including “pictures or other signs”:
We communicate our sentiments by words, spoken, written, or printed, or by pictures or other signs. [Discussion of slander by “words spoken” omitted.]
With respect to libels, or slander expressed by words written or printed, or by pictures or other signs, and infringing the right of reputation, “they have . . . at all times and with good reason been punished in a more exemplary manner than slanderous [i.e., spoken] words . . . .” [Discussion of libel omitted.]
Justice Blackstone defines libels, “taken in their largest sense, to be writings, pictures or the like, of an immoral or illegal tendency, and, in a more particular sense, any malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs or pictures, in order to provoke him to wrath or expose him to public hatred, contempt or ridicule. . . .”
The constitution of our state provides “. . . . The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. . . .” [All emphases added.]
Addison viewed the freedom of speech as distinctly limited; among other things, “[t]his right of free communication of thoughts and opinions is, like all other rights, limited by responsibility for its abuse, and laws to punish its abuse are not, in a constitutional or just sense, restraints on the liberty of the press.” But just as the limits applied equally to “words” and “pictures or other signs,” so the constitutionally protected “communication” equally covered both.
(The free speech/press provision of the 1790 Pennsylvania Constitution did expressly state that “In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence,” and Judge Addison quoted this language. But as the material quoted in the text makes clear, he did not view this language as generally limiting constitutional protection to “papers” as opposed to “pictures or other signs.” Rather, he saw the separate clause that spoke of the “right of free communications of thoughts and opinions” as providing independent protection to more than just papers. Likewise, neither the defense nor the prosecution in Respublica v. Montgomery took the view that the “publication of papers” clause meant that the state constitutional protection could not extend to liberty poles.
The possibility that protection was limited only to “papers” did not come up at all for the other sources I cite, because the Pennsylvania language was duplicated only in the Kentucky and Tennessee provisions and, later, in the Indiana, Arkansas, and Texas Constitutions. Other antebellum constitutions that provided that the truth was a defense spoke more broadly of “all criminal prosecutions or indictments for libels,” or “prosecutions for any publication respecting the official conduct of men in a public capacity, or where the matter published is proper for public information.”)
6. St. George Tucker’s appendix to his influential 1803 American edition of Blackstone likewise treated “pictures and hieroglyphics” (apparently referring to Blackstone’s “signs, or pictures”) as protected equally with “speech,” “writing[,] and printing”:
Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political . . . . [L]iberty of speech in political matters, has been equally proscribed in almost all the governments of the world, as liberty of conscience in those of religion. . . . [W]hen the introduction of letters among men afforded a new mode of disclosing, and that of the press, a more expeditious method of diffusing their sentiments, writing and printing also became subject of legal coer[c]ion; even the expression of sentiments by pictures and hieroglyphics [footnoting the Blackstone passage defining libels as “malicious defamations . . . made public by either printing, writing, signs, or pictures”] attracted the attention of the Argus-government, so far as to render such expressions punishable by law. The common place arguments in support of these restraints are, that they tend to preserve peace and good order in government [further details omitted]. . . .
In England [until 1694], the liberty of the press, and the right of vending books, was restrained to very narrow limits [by a system of prior restraint]. . . . In 1694, the parliament refused to continue these prohibitions any longer, and thereby . . . established the freedom of the press in England. But although [the lack of currently effective prior restraint regimes] may satisfy the subjects of England, the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation [citing the First Amendment and the Virginia Constitution].
Tucker thus viewed “the freedom of speech, and of the press” as covering “pictures and hieroglyphics” -- i.e., “signs, or pictures” -- alongside oral “speech,” “writing[,] and printing.”
7. We see something similar in a 1799 essay on the liberty of the press by Luther Martin, the Maryland Attorney General, leading early American lawyer, and Constitutional Convention member. Martin discussed libel law as a permissible limitation on the freedom of the press, and then casually mentioned the applicability of libel law to “signs” and “pictures”:
That “the freedom of the press[”] was never considered to extend so far as to exempt the printers and publishers from legal animadversion, according to the forms and principles of the common law, in case of publications false, scandalous and malicious, injuriously affecting private citizens or the public, [Sir William Blackstone] will prove to us: “Libels (says he) are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs or pictures, in order to provoke him to wrath, or to expose him to public hatred, contempt and ridicule” . . . .
Martin’s analysis would be odd if communication by “signs or pictures” (as opposed to by “printing” or “writing”) were unrelated to the constitutional right Martin was discussing. But it makes perfect sense if the underlying constitutional right embodied the equivalence of symbolic and verbal expression -- protecting both, but not when “publications false, scandalous and malicious injuriously affect private citizens or the public” -- just as the libel law restriction on the right embodied this equivalence.
8. Finally, many early cases and commentaries on libel law from the 1780s onwards likewise define libels to equally include symbolic and verbal expression, and at the same time discuss constitutional objections to libel law with no hint that the constitutional protection is limited to words and excludes the symbols. Just to give one example, consider this passage from Chancellor Kent, one of the leading commentators on early 1800s American law:
A libel, as applicable to individuals, has been well defined [citing two Massachusetts cases] to be a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. [Two more sentences on libel law omitted.]
But though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech, and of the press, should be duly preserved. The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that “every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press” [apparently closely paraphrasing the constitution of Kent’s own New York].
Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court spoke similarly in an 1832 grand jury charge. And Alexander Hamilton similarly argued in the 1804 People v. Croswell case that the liberty of the press limited the scope of libel law, and felt no qualms about defining libel to include “picture[s] or sign[s]” as well as words. If symbols were seen as outside the liberty of the press, it would have made much more sense for Kent, Shaw, and Hamilton to omit the constitutionally unprotected part of the definition, and to focus solely on verbal libel.
Standing alone, each of these sources would not be dispositive. Some were some decades removed from the Framing. Others spoke generally without having to deal with a concrete fact pattern involving symbolic expression. Others were extrajudicial commentaries or lawyers’ arguments rather than judicial opinions. Each could be suspected of being the idiosyncratic view of one author, or of one state’s legal system. But together, the sources are highly probative, precisely because they show a consistent pattern from the 1790s to the 1830s and in many states, and because they show that the equivalence of symbolic and verbal expression was taken for granted by judges, commentators, and lawyers alike.
Related Posts (on one page):
- “Freedom of Speech, or of the Press” as the “Right To Speak, To Write, or To Publish,” Including Symbolic Expression:
- Symbolic Expression in Late 1700s and Early 1800s Discussions of Constitutional Law:
- Symbolic Expression in Late 1700s and Early 1800s Speech Restriction Law:
- A Brief Note on Symbolic Expression During the Framing Era:
- Symbolic Expression and the Original Meaning of the First Amendment: