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.
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.
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.”
Symbolic Expression in Late 1700s and Early 1800s Discussions of Constitutional Law:
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.
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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.
“Freedom of Speech, or of the Press” as the “Right To Speak, To Write, or To Publish,” Including Symbolic Expression:
So late 1700s and early 1800s judges and commentators accepted the equivalence of symbolic and verbal expression where the freedom of speech or of the press was concerned. But can this be legitimately done, at least as to symbolic expression that wasn’t printed on printing presses, given that the First Amendment expressly speaks only of “speech” and “press”?
If we pay attention to the constitutional text, presumably because the text received legal approval as the supreme law of the land, we should focus on what the phrase actually meant as a legal concept when it was enacted, and not just on what the individual words meant in lay language. This is why those Justices who most focus on the constitutional text continually stress the original meaning of the legal phrases. Likewise, Judge Bork and Senator Hatch, whom I quoted at the start of this article, are prominent originalists, not pure textualists.
Looking to the phrase’s legal meaning rather than the word-by-word lay meaning is especially sensible when we look at “the freedom of speech, or of the press”: Read in its most restrictive sense, the provision would leave the government free to punish its critics based on their personal letters or hand-lettered signs, though exactly the same statement would be protected if it were spoken or broadly disseminated through print. It’s hard to see why the Framers would have wanted to enact a provision with this sort of limitation. And the oddness of such a result points to the likelihood that the original meaning of “the freedom of speech, or of the press” was broader than the most restrictive reading of the individual words.
So what did the phrase “the freedom of speech, or of the press” mean? Apparently it meant what James Madison originally proposed as the text of the clause: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”
This was roughly the language suggested by the three state ratifying conventions that proposed a combined free speech and press guarantee -- Virginia, North Carolina, and Rhode Island. “[R]ight to speak, to write, or to publish” was also the language of the influential Pennsylvania Constitution of 1776, and of the Vermont Constitution of 1777. And the three most influential early writers on American law, St. George Tucker, Chancellor James Kent, and Justice Joseph Story, all expressly characterized the First Amendment as protecting a right to speak, to write, and to publish.
I’ve seen no evidence that the omission of the right “to write” was a deliberate decision to narrow the scope of Madison’s language. Tucker’s, Kent’s, and Story’s views suggest that there was no such deliberate decision, and the Court has correctly seen these early and learned sources as highly probative of the original meaning of the Constitution. The First Congress, when editing Madison’s proposal, thus apparently viewed “Congress shall make no law . . . abridging the freedom of speech, or of the press” as a synonym for “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”
(The Pennsylvania Constitution of 1790 replaced the language “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained” with “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.” Some other constitutions of the era likewise used “print,” though most used “publish.” This replacement may lead one to ask whether “publish” -- the term used in the forbears of the First Amendment -- was seen all along as a synonym simply for printing.
But the answer to that question is apparently “no.” First, the new introductory clause, which speaks broadly of “free communication of thoughts and opinions” is on its face broad enough to go beyond oral and written verbal expression. And, second, the sources cited in the previous Part -- including the views of post-1790 Pennsylvanian judges and lawyers -- show that the constitutional principle was seen as covering symbolic expression as well as the literally spoken, written, and printed expression. This constitutional protection may have been seen as stemming from “free communication of thoughts and opinions,” or “speak, write, and print” may have been seen as extending to analogous “publish[ing]” that didn’t literally use the spoken, written, or printed word. But in any case, such protection seemed to be assumed.)
So the First Amendment was likely originally understood as applying to “publishing.” And “publish” (or sometimes “publication”) meant, to quote Samuel Johnson’s Dictionary, “to make generally and openly known; to proclaim; to divulge,” and not only to print a book. Publishing thus included publicly displaying symbolic expression, and for that matter publicly speaking something. To quote Supreme Court Justice James Wilson, who was one of the leading drafters of the Constitution, a libel is “a malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to publick hatred, contempt, or ridicule.” Blackstone, Chancellor Kent, other commentators, and leading cases likewise used “published” to refer to conveying symbolic expression and not just verbal expression. The same was true of blasphemy law and of obscenity law: “the showing of a picture [in that case, a painting] is as much a publication, as the selling of a book.”
The “right to speak, to write, or to publish” -- which is what the First Amendment was understood as securing -- thus literally covered the right to “publish” symbolic expression by publicly displaying it. The early courts’ and commentators’ treatment of symbolic and verbal expression as equivalent therefore fits well with the provision’s original meaning.
* * *
I hope, then, that I’ve shown one simple point: The original meaning of the First Amendment applies to symbolic expression -- as well as to handwriting -- as much as to spoken words (the narrowest meaning of “speech”) and to printed materials (the narrowest meaning of “press”). One can of course still argue that some sorts of symbolic expression, such as flag burning, should be constitutionally unprotected. But the argument that there is simply no First Amendment issue when symbolic expression is restricted, because such expression isn’t “speech” or “press,” is not supported by an originalist analysis.
(Note: To see the footnotes that support the assertions in this post and the preceding ones, look at the full current draft here, or, if that doesn’t work for you, here.)