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What Is Symbolic Speech?

The Supreme Court has ruled that symbolic speech is protected by the Constitution.
The US Supreme Court has ruled that symbolic speech is protected under the First Amendment.
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  • Last Modified Date: 15 December 2014
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Symbolic speech is nonverbal communication which is intended to convey a belief, concept, or idea. The United States Supreme Court has ruled on multiple occasions that symbolic speech is a form of free speech and that, as such, it is considered protected under the law. The classic example of symbolic speech brought up in many discussions of the topic is flag burning. Several Supreme Court cases have struck down laws against flag burning, arguing that they infringe upon the free speech rights guaranteed under the United States Constitution.

Symbolic speech itself is not addressed or discussed in the Constitution. Legal researchers have theorized that this may be because modes of communication were primarily verbal at the time this document was written. Protecting freedom of expression in the form of spoken word, writing, and freedom of the press would have been viewed as important, but the drafters of the Constitution might not have thought about nonverbal expressions such as works of art, the wearing of symbols, and so forth.

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By law, infringing upon symbolic speech is not legal. Regulations which pertain to activities which are considered a form of symbolic speech must be value neutral and focused on the behavior, rather than the idea expressed. For example, laws banning burning of draft cards were upheld because although burning a draft card is a form of political speech, it also interferes with the administration of the draft, thereby making it legal to legislate the behavior. Were someone to burn a copy of a draft card or a symbolic draft card, however, this activity would be protected.

Numerous examples of cases involving symbolic speech can be seen at various points in American history. In these cases, as a general rule, it must be demonstrated that restrictions were intended to moderate behavior with the goals of promoting public safety and order. Banning the wearing of armbands with a symbol would not be upheld in court under the argument that an armband does not pose a threat to public order, safety, and health. On the other hand, setting fire to a government building would not be protected because while it might be a form of political commentary, it poses a threat to public safety.

Organizations like the American Civil Liberties Union (ACLU) help Americans protect and defend their right to symbolic speech. Lawyers who work for these organizations work with their clients to fight restrictions on behavior which is considered symbolic speech. Some notable lawsuits involving symbolic speech have involved children in school; despite the fact that schools are often given broad leeway when it comes to prohibiting behaviors, some students have successfully won cases by arguing that their behavior posed no threat to general order, safety, and health. These cases have affirmed the rights of students to sit during the Pledge of Allegiance, to wear protest stickers or armbands, and to produce works of art with political messages.

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anon208646
Post 5

Free speech, whether articulated or symbolic, does not have to be *popular* speech. This is an important distinction to make when discussing the First Amendment's passages on "free speech". The unspoken words at the end of those sentences is "by the government". The Supreme Court tends to view provocative acts such as flag burning with an eye towards *governmental* response, not necessarily a social response.

Can a government representative extinguish a burning flag held by a protestor? No, not legally. He or she has every right to be offended, and to denounce the act in a public speech or press release after the fact, but the burning of a piece of cloth which represents a US flag can only be interpreted as symbolic speech.

I believe the case involving the Boy Scouts came down to the rights of private organizations. The protections offered by the First Amendment only extend to governmental agencies, and the Boy Scouts are not part of the government. An individual who was denied membership because of his race or sexual orientation or other consideration can still pursue a civil suit, but the organization itself is not legally required to follow the same rules as government agencies.

Parents can choose not to allow their children to participate in an organization they feel is exclusionary or prejudiced, but the federal government cannot force the Boy Scouts to modify their internal criteria for membership.

oasis11
Post 4

Cafe41-I don’t always agree with the Supreme Court ruling, but there was a case called the Boy Scouts of America v Dale in which the Boy Scouts was asserting their right to assembly speech by not allowing homosexuals to participate in their organization.

The court ruled in their favor stating that they had a right to organize and exclude people from their group. They did not have to include people in their group that they did not want to. The justices said that this was a freedom of association issue. Justice William Rehnquist wrote the majority opinion for the case.

cafe41
Post 3

Icecream17- I remember that case.

The Supreme Court ruled in the favor of Johnson stating that this was protected speech under the first amendment.

To me, I feel that this is hate speech because desecrating such an American symbol like that is so disrespectful and it is really in sighting potential violence.

This is probably the only country in the world that allows its citizens to desecrate such an important national symbol. I feel it should not be permitted and people should be jailed if they do so.

icecream17
Post 2

BrickBack-

BrickBack- I think that we have to define symbolic speech. In the case of Tinker v Des Moines, I can see why this is protected speech, however in the case Texas v Johnson I do not understand why the justices ruled how they did.

In the case of Texas v Johnson, Gregory Lee Johnson actually burned an American flag because he was protesting the policies of the Reagan administration. But, Texas had a statue that stated that this was illegal and the case went up to the Supreme Court. The Court ruled in his favor.

BrickBack
Post 1

In Tinker vs. Des Moines School District the case revolved around what Tinker viewed as protected speech.

Symbolic speech court cases like this involved the fact the Tinker was wearing an arm band to school as a symbol of peace.

The school prohibited this attire and asked the student to remove the garment. The student refused and the case went up to the Supreme Court in which the justices voted in favor of Tinker stating that this was a form of protected speech and a violation of the first amendment.

The Tinker v Des Moines case opened up the notion of symbolic speech as a right that Americans have to exercise. This free speech school case really took the authority away from the school and something like this could be disruptive because this garment is a distraction to the other kids in the class. I do not agree with the Tinker v Des Moines ruling.

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