pageok
pageok
pageok
Prof. Mike Rappaport (Right Coast) on Symbolic Expression and the First Amendment,

here. Rappaport is a leading scholar of late 1700s constitutional thinking -- much more expert in the field than I am.

Upend, Coming:
Hey, Rappaport!
8.8.2009 1:54am
J. Aldridge:
The record is pretty clear the Federal First Amendment has nothing to do with symbolic expression or libel law in general (see here for why). Some state constititions wording might open the door for symbolic expression arguments, but not the Federal First Amendment.
8.8.2009 6:35am
J. Aldridge:
^^ Not saying cartoons directed at govt affairs or officials could be criminalized since these can be just as powerful as the written word.
8.8.2009 6:45am
Arkady:


Not saying cartoons directed at govt affairs or officials could be criminalized since these can be just as powerful as the written word.


So what? Under your interpretation of the First, they, not being speech, are not protected. The fact the they can be "just as powerful" as the written (and spoken) word is not proof against prosecution under a "no symbolic expression protected" interpretation.
8.8.2009 7:09am
Angus:
I'm sure that the revolutionary generation, with their extensive use of political cartoons, parades and processions, symbolic burials of Acts of Parliament, hangings in effigy, building of liberty poles, engravings on pottery, etc., would agree that symbolic expression is not to be protected.
8.8.2009 7:20am
J. Aldridge:
So what? Under your interpretation of the First, they, not being speech, are not protected.

If they (cartoons) are of publication directed at government affairs they would be protected.
8.8.2009 8:11am
ruuffles (mail) (www):

If they (cartoons) are of publication directed at government affairs they would be protected.

I don't see any mention of "government affairs" in the 1st amendment.
8.8.2009 10:10am
troll_dc2 (mail):
The basic problem with symbolic speech (better to call it "expressive conduct") is that it simply cannot have the same full-throated protection that actual speech enjoys. The reason is that it affects other people and institutions in a way that speech and literature do not.

It is one thing to say, "I am so angry at NAFTA that I am going to smash a store window with a brick when the trade conference comes to town" and quite another to smash the store window. Even the Supreme Court upheld a conviction for the symbolic crime of burning a draft card.

So how should the line be drawn? I will take a stab at it. First, the conduct has to be objectively expressive. You should not be able to do anything and claim that you really did mean to express a position on some issue. Second, you cannot interfere with anybody else's personal or property rights. Thus, you cannot deface a hated corporate executive's house to protest his being awarded a massive severance payment. Third, you can be required to comply with generally applicable health and safety rules. You cannot burn a flag at a service station.

Can anyone point me to something more sophisticated to read on the subject?
8.8.2009 10:26am
GMUSOL05:
His scholarly pursuits in no way make up for the atrocity that was "The War at Home."
8.8.2009 11:16am
AJK:

The basic problem with symbolic speech (better to call it "expressive conduct") is that it simply cannot have the same full-throated protection that actual speech enjoys.

...


Is that really a qualitative difference? It's not like political speeches are exempt from noise ordinances.
8.8.2009 11:41am
SuperSkeptic (mail):
This isn't meant as an attack on formalism per se, but these categories (expressive conduct, symbolic speech, etc)seem a bit formalistic. This may be a little too simplistic of an approach, but what about just "reading between the lines" to determine whether what is being suppressed or infringed is really someones speech/idea/opinion - cut to the heart of the matter.

Under this approach, the draft card case might come out the other way...if I recall, there was a pretty tortured analysis in that case eventually finding that the administrative duties of government trumped speech.
8.8.2009 11:46am
troll_dc2 (mail):

This isn't meant as an attack on formalism per se, but these categories (expressive conduct, symbolic speech, etc)seem a bit formalistic. This may be a little too simplistic of an approach, but what about just "reading between the lines" to determine whether what is being suppressed or infringed is really someones speech/idea/opinion - cut to the heart of the matter.



Reading between the lines has its own problems. There is no reason not to treat pointing at something as just like speaking or writing, regardless of the motive behind the act. But suppose expression takes the form of throwing a brick, and it is proved that the brick was thrown to express an opinion. Should that determination mean that the act should be protected, regardless of the consequences of the throw? I think not.
8.8.2009 12:26pm
Fub:
troll_dc2 wrote at 8.8.2009 12:26pm:
Reading between the lines has its own problems. There is no reason not to treat pointing at something as just like speaking or writing, regardless of the motive behind the act. But suppose expression takes the form of throwing a brick, and it is proved that the brick was thrown to express an opinion. Should that determination mean that the act should be protected, regardless of the consequences of the throw? I think not.
Were the brick symbolic, as distinct from actual and made of fired clay, then there would be no property damage "consequences of the throw", hence nothing but symbolic speech to prosecute.

The left might support a statute specifying the composition of symbolic foam nerfbricks, and exempting their throwing from prosecution in political demonstrations. The right would oppose this over-reach of government's regulatory authority, and support manufacture and use of noncompliant symbolic bricks made of angel food cake.

The ensuing street demonstrations and counterdemonstrations would provide endless hours of profitable TV entertainment, with no costs or only minor costs to local governments cleaning up the aftermath.

Competing symbolic brick manufacturers would flourish by supplying the demonstrations. Political fundraisers and lobbyists from all affected constituencies and industries, would flourish by exploiting the controversy. Politicians would have a pressing economic issue with constitutional implications to grandstand for election.

This application of bread, circuses, political fulmination, attempted regulatory capture and rent seeking could lead the country out of its present economic crisis. What's not to like?
8.8.2009 1:28pm
troll_dc2 (mail):
If the brick were merely symbolic, and thus incapable of injuring someone or destroying things, and if it were not thrown at someone with any attempt to assault, then I would think that there would no grounds for prosecution.
8.8.2009 1:41pm
SuperSkeptic (mail):
Even under my "read between the lines" approach to this, I'm with you that the brick throwing (with a political-speech motive) would be regulatable. It's throwing a brick. It damages property, like in your scheme. It's conduct. But, burning the draft card is my own property. Reading between the lines has it's own problems true, but they are problems that keep the goal of the 1st amendment the central focus of the analysis - the heart of the matter, rather than focusing on the formalistic categories of expressive this or that, which I think obscures and clouds the analysis.
8.8.2009 3:03pm
NowMDJD (mail):

If the brick were merely symbolic, and thus incapable of injuring someone or destroying things, and if it were not thrown at someone with any attempt to assault, then I would think that there would no grounds for prosecution.



From the standpoint of liability for lawsuits, battery consists of any intentional contact that a reasonable person would deem harmful or offensive. Assault is any action that would cause reasonable apprehension of battery or unwanted confinement.

Lawsuits are not prosecutions, but you can't do things that would scare a reasonable person either, or make physical contact with them contrary to their desire.
8.8.2009 4:53pm
J. Aldridge:
I don't see any mention of "government affairs" in the 1st amendment.

But you will with its historical background.
8.8.2009 5:22pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.