Nonverbal gestures and actions that are meant to communicate a message.
The term symbolic speech is applied to a wide range of nonverbal communication. Many political activities, including marching, wearing armbands, and displaying or mutilating the U.S. flag, are considered forms of symbolic expression. The U.S. Supreme Court has held that this form of communicative behavior is entitled to the protection of the first amendment to the U.S. Constitution, but the scope and nature of that protection have varied.
The Supreme Court first gave symbolic speech First Amendment protection in Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931). The Court overturned a California statute that prohibited the display of a red flag as a "sign, symbol or emblem of opposition to organized government." But not until the vietnam war era did the Court articulate the rules to be followed in determining whether symbolic expression is entitled to the protection of the First Amendment.
In United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the Court reviewed the conviction of David Paul O'Brien for violating a 1965 amendment to the Selective Service Act (50 U.S.C.A. App. §§ 451 et seq.) that prohibited any draft registrant from knowingly destroying or mutilating his draft card. O'Brien had burned his Selective Service card on the steps of the South Boston Courthouse at a rally protesting the Vietnam War. He claimed that his act of burning his card was symbolic speech protected by the First Amendment. The government argued that it could prohibit this conduct because it had a legitimate interest in requiring registrants to have draft cards always in their possession as a means of ensuring the proper functioning of the military draft.
The Supreme Court sided with the government, with Chief Justice earl warren rejecting "the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express his idea." When "speech" and "nonspeech" elements are combined in the same course of conduct, a lesser burden will be placed on the government to justify its restrictions. Accordingly, the Court announced the appropriate constitutional standard:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. Applying this test to the statute involved in O'Brien, the Court found the law constitutional.
A less defiant form of symbolic speech was extended constitutional protection during the Vietnam War. In tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), high school officials in Des Moines, Iowa, had suspended students for wearing black armbands to school to protest U.S. involvement in the Vietnam War. Justice abe fortas, in his majority opinion, rejected the idea that the school's response was "reasonable" because it was based on the fear that the wearing of the armbands would create a disturbance. Fortas ruled that the wearing of the armbands was "closely akin to 'pure speech' which … is entitled to comprehensive protection under the First Amendment…" Public school officials could not ban expression out of the "mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint."
Political protesters have often used the U.S. flag as a vehicle to express opposition to government policies. During the Vietnam War era, the mutilation or burning of the flag became commonplace. Such actions angered many people, and legislation was passed at the state level to prohibit this conduct. In Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969), the Supreme Court had the opportunity to address the question of whether flag burning is entitled to constitutional protection as symbolic speech. However, the Court focused on the element of verbal expression also presented in this case and effectively avoided the symbolic speech issue. In a 1974 case, the Court did strike down a Washington state law that prohibited the display of the U.S. flag with "extraneous material" attached to it (Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842).
The Street decision left open the question of whether flag burning per se was a form of symbolic speech protected by the First Amendment. In 1989, in the highly publicized case of texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342, the Court surprised many observers by ruling that flag burning was protected. After publicly burning the U.S. flag outside the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson was charged with violating a Texas law prohibiting flag desecration. Johnson was convicted at trial, but his conviction was reversed by the Texas Court of Criminal Appeals, which held that the law violated the First Amendment. On a 5–4 vote, the U.S. Supreme Court agreed.
Writing for the majority, Justice william j. brennan jr. noted that "[t]he expressive, overtly political nature of [Johnson's] conduct was both intentional and overwhelmingly apparent." It was clear that "Johnson was convicted for engaging in expressive conduct." Rejecting the assertion by Texas that the law prevented breaches of the peace, the Court concluded that "Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."
Chief Justice william h. rehnquist, in a dissenting opinion, dismissed the idea that flag burning was a form of symbolic speech. On the contrary, he stated, "flag burning is the equivalent of an inarticulate grunt or roar that … is most likely to be indulged in not to express any particular idea, but to antagonize others…." Rehnquist argued that the flag "as the symbol of our Nation, [has] a uniqueness that justifies a governmental prohibition against flag burning…."
Flag Burning: Desecration or Free Expression?
The Supreme Court's decision in texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), striking down a Texas law that made burning the U.S. flag a crime, was endorsed by the american civil liberties union (ACLU) and other groups that seek to preserve freedom of expression under the first amendment. Other groups and individuals, however, were dismayed that the Court would strike down a law that protected the symbol of the United States. Congress responded by passing the federal Flag Protection Act of 1989, 103 Stat. 777, which made flag burning a federal crime. When the Supreme Court struck down the federal law in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), opponents of flag burning began to campaign for a constitutional amendment that would make such a law constitutional.
The proponents of a flag protection amendment have been led by the Citizens Flag Alliance (CFA), a nonpartisan, nonprofit national coalition that includes more than one hundred organizations and is funded, in large part, by the american legion. The proposed amendment states that "Congress shall have power to prohibit the physical desecration of the flag of the United States." The House of Representatives overwhelmingly passed the amendment in June 1995, but the Senate defeated the amendment by three votes in December 1995.
Despite this defeat, the CFA has continued to campaign for the amendment, noting that opinion polls consistently show that 80 percent of U.S. citizens support the amendment. In addition, fortynine state legislatures have passed resolutions asking Congress to pass a flag protection amendment—eleven more states than are needed to ratify an amendment. The amendment was reintroduced in Congress in 1997. The House passed the measure by a vote of 310–114, but a vote in the Senate was delayed.
Proponents of the amendment contend that it does not restrict freedom of expression or limit the First Amendment. They note that there have always been limits on free speech and that the Supreme Court has never regarded the guarantees of the First Amendment as absolute. Proponents point to Chief Justice william h. rehnquist's dissent in Johnson, in which he characterized flag burning as "the equivalent of an inarticulate grunt or roar" and the flag as a national symbol deserving of protection.
In addition, supporters of the amendment deny that flag burning is symbolic speech. They argue that the act of flag desecration is conduct rather than speech and is thus outside the First Amendment's protection. The Supreme Court's decisions have regarded flag burning as protected symbolic speech, however, so this argument can only prevail if the Court's interpretation is overridden by an amendment to the Constitution.
Supporters of the amendment contend that the flag has a special place in U.S. society and culture and serves as a unifying symbol for a heterogeneous nation. Because of its unique status, the flag must be honored and respected. They argue that the freedom to desecrate the flag is not a fundamental freedom deeply rooted in the First Amendment. Therefore, they conclude, it is reasonable for a balance to be struck between the rights of the individual and her responsibility to society. In this instance societal values should prevail over individual interests.
Proponents of the amendment strenuously object to the charge that they are restricting freedom of speech. The amendment does not prevent a person from criticizing, in speech or writing, the government, government officials, or even the flag itself. The amendment simply gives Congress the authority to pass legislation that prohibits the desecration of the U.S. flag.
Opponents of the amendment, led by the ACLU, insist that the passage of the flag amendment would limit freedom of expression and restrict the First Amendment. They point out that the word desecration is a religious concept that means to profane or violate the sanctity of something. According to opponents, the flag amendment would implicitly constitutionalize the flag as the sacred or divine object of the United States. Such an action would run counter to the bill of rights.
Opponents of the amendment contend that flag burning is a rare event that does not merit the amending of the Constitution. No more than five or six persons were prosecuted annually for flag burning before the Johnson decision. Opponents worry that once a flag desecration amendment is passed, it will open the door to the revocation of other individual freedoms. The Constitution and the Bill of Rights were designed to prevent the tyranny of the majority. Just because a flag desecration amendment has broad support does not make it right. Once flag burning is banned, legislators and pressure groups will seek to restrict other freedoms.
Those opposed to the amendment also argue that the Supreme Court's decision in Johnson contained the best reason for rejecting it. As Justice william j. brennan jr. stated, "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." Opponents see the toleration of actions such as flag burning as a sign and source of national strength. In their view the flag stands for the freedoms each U.S. citizen enjoys, including the right to burn that very symbol.
Goldstein, Robert Justin. 1996. Burning the Flag: The Great 1989–1990 American Flag Desecration Controversy. Kent, Ohio: Kent State Univ. Press.
The Johnson decision angered conservatives, who called for a constitutional amendment to place flag burning beyond the First Amendment's protection. When the amendment proposal failed to gain support, Congress passed the federal Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777, which made flag burning a federal crime. In United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the Flag Protection Act as applied to flag burning as a means of political protest.
Many commentators have criticized the way the Supreme Court has treated the symbolic speech area. In particular, observers have noted that the line between "speech" and nonverbal "conduct" is impossible to draw and that the real emphasis should be placed on the motive behind the government regulation. This approach would determine whether the regulation was intended to censor certain ideas or whether it was directed at the noncommunicative impact of the behavior.
Berckmans, Paul. 1997. "The Semantics of Symbolic Speech." Law and Philosophy 16 (May).
Citizens Flag Alliance website. Available online at <www.cfainc.org> (accessed February 1, 2004).
Goldman, T. R. 1999. "Flag Law on Front Burner; Close Vote Generates Intense Lobbying." Legal Times (May 10).
Goldstein, Robert Justin. 2000. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: Univ. Press of Kansas.
Hilden, Julie. "Do Americans Have a Legal Right to Become Human Shields?" CNN.com: Law Center. Available online at <www.edition.cnn.com/2003/LAW/08/14/findlaw.analysis.hilden.human.shield> (accessed October 3, 2003).
Waldman, Joshua. 1997. "Symbolic Speech and Social Meaning." Columbia Law Review 97 (October).
Welch, Michael. 2000. Flag Burning: Moral Panic and the Criminalization of Protest. New York: Aldine de Gruyter.