Symbolic speech
Encyclopedia
Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. Symbolic speech is recognized as being protected under the First Amendment
as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers
did not address this issue in the Bill of rights
is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression. Symbolic speech is distinguished from pure speech
, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.
, Chief Justice
Warren
described a series of guidelines used to determine whether a law that restricts speech violates the First Amendment. These guidelines must remain neutral in relation to the subject of the speech at hand (i.e., a speech that criticizes government action and is believed to violate a law must be treated the same way as a speech under identical circumstance, but praises the government as opposed to criticizing.) It must be noted that the O'Brien test is not meant to be the absolute deciding factor in cases involving non-verbal speech, but an additional tool to invoke against prohibitions.
The O'Brien Test is thus: The law in question must
s overlaid with a white peace sign between the dates of December 16 and New Years Day. The principals of the students' schools had previously threatened to suspend any students who participated in the protest. Despite the warning, the small group of students proceeded to carry out their dissent, and were duly suspended. ACLU
attorneys representing the students argued that the armbands constituted a form of symbolic speech and, because their demonstration was suppressed, their First Amendment rights were unconstitutionally restrained. The court voted 7–2 in favor of Tinker, finding that the suspension had violated. Justice
Fortas
, delivering the opinion of the court, held the following:
The court ruled 7–1 against O'Brien. In the opinion of the court, Chief Justice Warren wrote that while the First Amendment does protect freedom of speech, it does not protect all things that may extraneously be labeled 'symbolic speech'. As such, O'Brien's protest was not protected because the United States had a compelling interest
in preventing the destruction or mutilation of draft cards. To help himself and future justices determine what may be protected under the free speech clause, he developed a series of requirements that laws must meet in order to stay out of conflict with the First, and thus be considered constitutional, known now as the O'Brien test.
that was given to him by a fellow demonstrator with kerosene and set it alight while those around him chanted "America the red, white and blue, we spit on you." He was later arrested and convicted on a flag desecration law in Texas, and sentenced to one year in prison and a $2,000 fine.
The court ruled 5 to 4 in favor of Johnson. Justice Brennan
wrote that because such other actions in relation to the flag (such as saluting, and displaying) are considered to be a form of expression, so must too the burning be, and that Johnson's protest was "'Sufficiently imbued with elements of communication' to implicate the First Amendment." He also explained that the relevance of the O'Brien test is limited "in which 'the governmental interest is unrelated to the suppression of free expression'", as the Texas law in question had its interest in preventing any violent reaction that my spring from those witnessing the burning of the flag. This case helped solidify the condition that any law that inhibits freedom of speech must have an important and compelling interest to do so.
officer witnessed the jacket and slogan in the corridor and arrested him for "willingly and unlawfully and maliciously
disturbing the peace
and quiet by engaging in tumultuous and offensive conduct."
The Court voted 5–4 in favor of Cohen. Justice Harlan
wrote "[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive
a criminal offense." In the court's opinion, Harlan also penned the now famous line "one man's vulgarity
is another's lyric
".
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
did not address this issue in the Bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression. Symbolic speech is distinguished from pure speech
Pure speech
Pure speech in United States law is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea. It is distinguished from symbolic speech or "speech plus," which involves conveying an idea or message through behavior. Pure...
, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.
O'Brien Test
While writing the majority opinion for United States v. O'BrienUnited States v. O'Brien
United States v. O'Brien, 391 U.S. 367 , was a decision by the Supreme Court of the United States, which ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech...
, Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
described a series of guidelines used to determine whether a law that restricts speech violates the First Amendment. These guidelines must remain neutral in relation to the subject of the speech at hand (i.e., a speech that criticizes government action and is believed to violate a law must be treated the same way as a speech under identical circumstance, but praises the government as opposed to criticizing.) It must be noted that the O'Brien test is not meant to be the absolute deciding factor in cases involving non-verbal speech, but an additional tool to invoke against prohibitions.
The O'Brien Test is thus: The law in question must
- be within the constitutional power of the government to enact.
- further an important or substantial government interest.
- That interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it.)
- Prohibit no more speech than is essential to further that interest.
Tinker v. Des Moines
In December 1965, a group of five students, including lead plaintiff John Tinker and his sister Mary Beth Tinker, wore black armbandArmband
An armband is a piece of material worn around the arm over the sleeve of other clothing if present. they may be worn for pure ornamentation to mark the wearer as belonging to group, having a certain rank or role, or being in a particular state or condition...
s overlaid with a white peace sign between the dates of December 16 and New Years Day. The principals of the students' schools had previously threatened to suspend any students who participated in the protest. Despite the warning, the small group of students proceeded to carry out their dissent, and were duly suspended. ACLU
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
attorneys representing the students argued that the armbands constituted a form of symbolic speech and, because their demonstration was suppressed, their First Amendment rights were unconstitutionally restrained. The court voted 7–2 in favor of Tinker, finding that the suspension had violated. Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
, delivering the opinion of the court, held the following:
- "In wearing armbands, the petitioners were quiet and passive. They were not disruptive, and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First AmendmentFreedom of speech in the United StatesFreedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...
and the Due Process Clause of the FourteenthDue processDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
." - "First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment."
- "A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments."
United States v. O'Brien
"On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificatesSelective Service SystemThe Selective Service System is a means by which the United States government maintains information on those potentially subject to military conscription. Most male U.S. citizens and male immigrant non-citizens between the ages of 18 and 25 are required by law to have registered within 30 days of...
on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of InvestigationFederal Bureau of InvestigationThe Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
, witnessed the event. Immediately after the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety inside the courthouse. After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificateDraft-card burningDraft-card burning was a symbol of protest performed by thousands of young American men as part of the opposition to the involvement of the United States in the Vietnam War. Beginning in May 1964, some activists burned their draft cards at anti-war rallies and demonstrations. By May 1965 it was...
because of his beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate, which, with his consent, were photographed.
For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts. He did not contest the fact that he had burned the certificate. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his anti-war beliefs, as he put it, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position."
The court ruled 7–1 against O'Brien. In the opinion of the court, Chief Justice Warren wrote that while the First Amendment does protect freedom of speech, it does not protect all things that may extraneously be labeled 'symbolic speech'. As such, O'Brien's protest was not protected because the United States had a compelling interest
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
in preventing the destruction or mutilation of draft cards. To help himself and future justices determine what may be protected under the free speech clause, he developed a series of requirements that laws must meet in order to stay out of conflict with the First, and thus be considered constitutional, known now as the O'Brien test.
Texas v. Johnson
In 1984, during a protest against the policies of the Reagan administration in Dallas, Texas, Gregory Lee Johnson doused an American flagFlag of the United States
The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
that was given to him by a fellow demonstrator with kerosene and set it alight while those around him chanted "America the red, white and blue, we spit on you." He was later arrested and convicted on a flag desecration law in Texas, and sentenced to one year in prison and a $2,000 fine.
The court ruled 5 to 4 in favor of Johnson. Justice Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
wrote that because such other actions in relation to the flag (such as saluting, and displaying) are considered to be a form of expression, so must too the burning be, and that Johnson's protest was "'Sufficiently imbued with elements of communication' to implicate the First Amendment." He also explained that the relevance of the O'Brien test is limited "in which 'the governmental interest is unrelated to the suppression of free expression'", as the Texas law in question had its interest in preventing any violent reaction that my spring from those witnessing the burning of the flag. This case helped solidify the condition that any law that inhibits freedom of speech must have an important and compelling interest to do so.
Cohen v. California
In 1968, Paul Cohen entered a Los Angeles Courthouse wearing a jacket that displayed the words "Fuck the Draft" knowing that the jacket displayed these words. Though he had removed the jacket and placed it under his arm before entering the courthouse, a policePolice
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
officer witnessed the jacket and slogan in the corridor and arrested him for "willingly and unlawfully and maliciously
Malice (legal term)
Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. Malice is expressed when there is manifested a deliberate intention unlawfully to take away the life of a human being...
disturbing the peace
Peace
Peace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...
and quiet by engaging in tumultuous and offensive conduct."
The Court voted 5–4 in favor of Cohen. Justice Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
wrote "[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive
Expletive attributive
Expletive comes from the Latin verb explere, meaning "to fill", via expletivus, "filling out". It was introduced into English in the seventeenth century to refer to various kinds of padding—the padding out of a book with peripheral material, the addition of syllables to a line of poetry for...
a criminal offense." In the court's opinion, Harlan also penned the now famous line "one man's vulgarity
Vulgarity
Vulgarity is the quality of being common, coarse or unrefined. This judgement may refer to language, visual art, social classes or social climbers...
is another's lyric
Lyric poetry
Lyric poetry is a genre of poetry that expresses personal and emotional feelings. In the ancient world, lyric poems were those which were sung to the lyre. Lyric poems do not have to rhyme, and today do not need to be set to music or a beat...
".