Symbolic Speech

The term symbolic speech refers to an action that expresses an idea or opinion without using words alone. The law recognizes that verbal words are not the only way for people to express themselves, and so other methods of expression are protected by the Free Speech Clause of the Constitution. These may include such acts as the wearing of certain clothing, buttons, or other items, the waving of flags, and engaging in demonstrations. To explore this concept, consider the following symbolic speech definition.

Definition of Symbolic Speech

Noun

  1. An action that resolutely and clearly conveys a specific message or statement to those who view it.

Origin

20th century     U.S. Supreme Court Ruling

What is Symbolic Speech

Symbolic speech is the expression of an idea, opinion, or emotion through non-verbal or non-written means. This includes such acts as engaging in a demonstration, sit-in, or parade; waving of flags or banners, or holding of signs; and wearing protest buttons or expressive clothing. Both verbal speech and the written word are protected by the U.S. Constitution’s Free Speech Clause, which states:

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.”

The Supreme Court has ruled that symbolic speech – or those actions which express a person’s idea – are also protected. However, not all speech, whatever form it takes, is free.

Freedom of Speech and Symbolism

In the centuries since the ratification of the U.S. Constitution, the idea of free speech has grown to mean freedom of expression. This is because the courts, and therefore the people, understood that the framers of the Constitution intended that the people be free to express themselves, without fear of governmental reprisal.

In times of strife, U.S. citizens began publicly expressing themselves in more forthright ways. While the colonists who engaged in the protest now known as the “Boston Tea Party,” saw the action as an extreme measure, they were all engaged against the same foe. As America moved through the 20th century, many people began seeking yet more social and political change, often making their points through symbolic speech.

Demonstrations, riots, sit-ins, and parades occurred more frequently, and protesters expressed themselves in ways that scandalized others. Handmade signs expressing protesters’ opinions, carried in protest marches and sit-ins, were often seen as derogatory; and other actions, such as flag burning, inflamed the emotions of others.

Many people who disagree with, not only the ideas of such protesters, but their methods, might think they’ve gone too far in their actions, and that such disrespectful displays should be banned. The question, however, became one of intent: What did the Founding Fathers intend that true freedom should mean to the citizens of the new nation?

Limits to Free Speech

Although symbolic speech has long been included in the people’s freedom of speech, it does not mean that people are free to say – or express – anything they want, wherever they want, whenever they want. The Supreme Court has determined that certain expressions, such as those considered to be obscene, the spouting of lies about someone, and those inciting violence or sedition, are not free. This is because such expressions are deemed to cause harm to the people in general.

What this means, in legal terms, is that there must be a way to determine what types of speech are protected, and what types of expression should be banned. Restrictions on the First Amendment right to free speech have been developed over the years, as the Supreme Court has made decisions on types of expression that are harmful.

Incitement to Violence

Statements or actions that incite others to engage in violence are not protected under the First Amendment. In 1969, members of the Ku Klux Klan were convicted of advocating violence as a means of political reform. One of the men’s speeches referred to taking revenge against “niggers,” and “Jews,” and everyone who supported them.

The Supreme Court had previously ruled that promotion of the use of violence or force is not protected, if it is done in a way that is likely to result in such action. However, in this example of symbolic speech under fire, the Court reversed the Klan conviction, as the statements made at the rally did not create an imminent intent to do violence.

False Statements of Fact

The making of false statements, as though they are fact, have the ability to cause great harm to the victim of the lies. In considering the issue of whether false statements are protected by free speech, the Supreme Court has held that:

“… there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.”

The Court went on to say that such lies, or false statements of fact, cannot be considered an essential part of the exchange of ideas, and are clearly detrimental to society’s interest in “order and morality.” The law, as it applies to public figures, public officials, and the government, is where it becomes less clear.

Obscenity

The U.S. Supreme Court has determined that speech and other forms of expression are not protected by the Constitution if “the average person, applying contemporary community standards,” would feel that the expression:

  • is indecent
  • is patently offensive
  • lacks serious literary, artistic, political, or scientific value

This evaluation of whether an expression falls under the obscenity rule is referred to as the “Miller Test,” as it resulted from the Court’s decision in the Miller v. California case of 1973. By this ruling, symbolic expressions that encompass explicit nudity, sexual conduct, or other obscenities, are not protected under the First Amendment’s Free Speech Clause. However, it is generally not illegal for a person to own pornography, or to keep it at his home.

Child Pornography

Child pornography is considered to be a form of symbolic speech that is deemed obscene, while being held separate from the obscenity umbrella. The child pornography rule is very specific, and it does not require that any element meet the Miller Test.

The child pornography rule specifies that any speech, symbolic speech, or other expression that visually portrays children engaging in sexual acts, or lewdly exhibiting their genitals, is a criminal offense. In this example of symbolic speech, perpetrators may be criminally punished far more severely than those expressing themselves by obscenity.

There is another difference between obscenity and child pornography – the private possession or ownership of child pornography is illegal. This rule does not, however, apply to ownership of non-child pornography that society believes could cause harm when shown to children, or to pornography that encourages its audience to harm children.

Fighting Words and Offensive Speech

In 1942, the Supreme Court determined that speech which tends to breach the peace, or to provoke a fight, through the use of personally abusive words or symbolism, is not protected. These types of expression are considered to be “fighting words.”

In order to be unprotected by the First Amendment, fighting words must be specifically trained on the hearer, or the target, of the abusive words. In other words, the expressions must be delivered directly to the target, not heard in a roundabout manner.

Threats of violence that target a specific person or group, which may place that person or group at risk of harm or death, are not protected by the Constitution. In order to fall under this category, the threats must have been reasonably believable.

Threats of social snubbing or exclusion do not fall under this category, instead remaining under the First Amendment protections. Symbolic speech and fighting words that intentionally or recklessly inflict emotional distress on its target may be unprotected.

Symbolic Speech Example in Burning Flag

In 1984, during the Republican National Convention, Gregory Lee Johnson burned an American flag outside the Dallas Texas convention center. Johnson’s intent was to protest then-President Ronald Reagan’s policies. Quite a few witnesses of Johnson’s protest were deeply offended, and police arrested him. Johnson was charged with, and convicted of, violating a Texas law that barred desecration of “venerated objects,” if the actions were likely to incite others to violence.

Johnson appealed his conviction, arguing that his actions were protected as symbolic speech. The Texas Court of Criminal Appeals reversed the conviction, holding that the state could not punish someone for burning the flag. The state appealed, and the issue of whether flag burning was protected under the Free Speech Clause of the First Amendment was heard by the U.S. Supreme Court.

The Court ruled that Johnson’s conviction for desecration of the flag was not consistent with the First Amendment right to free speech. It also held that the state’s law was too broad, as it needed to target only those flag burnings that were likely to incite others to violence, or to trigger a serious disturbance of the peace.

In this example of symbolic speech, no one was hurt, and the demonstrators were already fired up, having paraded through the streets of Dallas, shouting and chanting. They broke windows, threw trash around, and destroyed property before reaching the convention center, where someone handed Johnson the flag, which had been stolen along the way.

Related Legal Terms and Issues

  • Emotional Distress – A negative emotional reaction, such as anguish, humiliation, or grief, resulting from the conduct of another individual. Also referred to as “mental anguish.”
  • Incite – To urge or persuade someone to act in a violent or unlawful way.
  • Lewd – Actions that are lustful, obscene, or indecent.

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