What Is Symbolic Speech? When Is It Protected?
(Note to teachers: When you assign this activity, you may want to invite a lawyer or law student to help with discussion of these cases. See Using Community Resources for recommendations on guest speakers and other resources.)
Directions
- Read the text below and complete the chart.
- When you are finished with the chart, your teacher will go over the answers with you or will ask you to go online to find the answers.
- After you have gone over the answers, complete the "Questions to Consider".
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The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.
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Almost
everyone knows that the First Amendment contains the
right to freedom of speech. What does this mean? On
its most basic level, it means you can express an opinion
without fear of censorship by the government, even if
that opinion is an unpopular one. However, it does not
mean you can say anything you want, whenever you want.
For instance, fighting words—words that cause distress or incite violence—are not protected. In addition, obscene
expressions are not protected by the First Amendment.
While most people understand these basic limitations on the right to free speech, understanding what constitutes "free speech" is complicated. For instance, some people argue that books, art, music, and other genres are also forms of speech because they, too, are expressive in nature. Over the years, the Supreme Court of the United States has debated what limitations should apply to these genres. The Court has also debated the claims made by others that actions that express an opinion are also protected. Often, these actions are referred to as "symbolic speech", which is below:
"Expression may be symbolic, as well as verbal. Symbolic speech is conduct that expresses an idea. Although speech is commonly thought of as verbal expression, we are all aware of nonverbal communication. Sit-ins, flag waving, demonstrations, and wearing . . . protest buttons are examples of symbolic speech. While most forms of conduct could be said to express ideas in some way, only some conduct is protected as symbolic speech. In analyzing such cases, the courts ask whether the speaker intended to convey a particular message, and whether it is likely that the message was understood by those who viewed it.
In order to convince a court that symbolic conduct should be punished and not protected as speech, the government must show it has an important reason. However, the reason cannot be that the government disapproves of the message conveyed by the symbolic conduct"
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So, just as there are limitations on the extent to which "free speech" applies to the spoken word, there are restrictions on the actions that people seek to have protected as symbolic speech.
Examine the actions below. Based on the information you have just read, determine if each action listed is a form of constitutionally protected "symbolic speech". In the last column, provide a brief rationale for your response.
| Action |
Is
the action a form of constitutionally protected
"symbolic speech"? |
Rationale |
| YES |
NO |
In
order to protest against a former employer, an
individual marches outside the business by herself
with a picket sign. State law says picketing is
illegal. The individual is arrested and fined
$100.
Read
the case abstract and ruling. |
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An
individual burns a draft card to express opposition
to the war. Federal law says that burning draft
cards is a crime.
Read
the case abstract and ruling. |
|
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A
young man walking through a public park wears
a jacket that says "F--- the draft. Stop
the War." The individual is convicted for
violating a law that forbids "maliciously
and willfully disturb[ing] the peace and quiet
of any neighborhood or person [by] offensive conduct."
The individual is arrested and sentenced to 30
days in jail.
Read
the case abstract and ruling. |
|
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An
organization applies for a permit to hold a demonstration
on the National Mall. Members plan to erect "tent
cities" in order to demonstrate the plight of
the homeless. The permit was denied on the grounds
that camping is forbidden on the Mall.
Read
the case abstract and ruling. |
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New
Hampshire's state motto, "Live Free or Die"
appears on license plates. An individual covers
"or die" on the grounds that it goes
against his religious and political beliefs. He
is convicted for violating a state law, fined,
and sentenced to jail time.
Read
the case abstract and ruling. |
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An
individual burns an American flag in order to
protest federal government policy. State law says
it is a crime to destroy the flag. The individual
is convicted, sentenced to one year in prison,
and fined $2,000.
Read
the case abstract and ruling. |
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Questions to Consider:
- Are there any general standards that seem to apply to symbolic speech?
- Based on what you have learned about symbolic speech, how do you think the Court will rule in Tinker v. Des Moines?
Arbetman, Lee P. and Edward L. O'Brien, eds. Street Law: A Course in Practical Law, sixth edition. Lincolnwood, IL: National Textbook Company, 1999.
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