Legal Symbolic Representation
Sometimes symbolic speech is more regulated than traditional forms of speech because it involves behavior or action, not just words. The Supreme Court`s decision in United States v. O`Brien (1968) illustrates this point well; The standard established in this case will continue to apply. O`Brien concerned a law from the Vietnam War era that prohibited the destruction of design cards. Congress defended the bill on the grounds that it had a legitimate reason to protect design maps: they displayed project status and other information, and facilitated communication between the government and citizens about that status, both critical factors in times of mobilization for war. Also during the Vietnam War, Tinker v was decided. Des Moines Independent Community School District (1969), a case in which a school district attempted to ban students from wearing black armbands in protest of the war. The court rejected the school`s argument that it needed the order to maintain order. The court ruled that the ban constituted a suppression of student expression and thus a violation of the First Amendment.
The decisive factor here was the fact that the students peacefully and undisturbed used armbands as a symbolic speech; Wearing armbands was no more disturbing than other symbols and jewelry that students were allowed to display. The landmark case dealing with the burning of the flag is Texas v. Johnson (1989). It was a Texas law that prohibits the degradation or damage of a flag knowing that the degradation “will gravely offend one or more persons who observe or discover its action.” While many undoubtedly find it offensive to burn the flag, the court found that Texas` interest in “preserving the flag as a symbol of the nation and national unity” was insufficient. The court wrote that any interest Texas might have in banning such speech is necessarily tied to suppressing free speech because it is tied to the content of symbolic speech. Particularly critical was that the flag burning law prohibited some speakers from expressing their opinions by burning flags, while others were allowed to do so: those who wanted to get rid of old flags were allowed to burn them in “respectful ceremonies”, but those who used flag burning as a form of protest could not burn them. Symbolic speech consists of non-verbal, unwritten forms of communication, such as burning flags, wearing armbands, and burning design cards. It is generally protected by the First Amendment unless it poses a specific and direct threat to another person or public order. Tinker v.
Des Moines Independent Community School District (1969) is a case in which a school district attempted to ban students from wearing black armbands in protest of war. The court ruled that the ban was a suppression of students` symbolic expressions and thus a violation of the First Amendment. In this 2017 photo, Mary Beth Tinker holds the original arrest certificate she received for wearing the black armband. (Photo by Amalex5, CC BY 4.0) The Court also considered the symbolic cremation of other objects, such as crosses. R.A.V. St. Paul (1992) deals with the burning of crosses and the use of other offensive symbols that could be considered so-called fighting words. Words of combat have traditionally been seen as words capable of provoking retaliation for the average person and thus causing a breach of the peace. St. Paul, in Minnesota, passed the Crimes of Prejudice Ordinance, which prohibited swastikas, burnt crosses and other similar symbols when used to incite fear or anger “on the basis of race, color, creed, religion, or sex.” St.
Paul viewed the prohibition simply as a prohibition against fighting words that were not traditionally protected by the First Amendment. The court created a four-part test for determining when the regulation of symbolic speech violated the First Amendment: The O`Brien test was not considered appropriate in all instances of symbolic speech. One of the reasons is the provision that the state`s interest behind a certain regulation must be neutral and has nothing to do with the suppression of language. The Court has emphasized this point in cases involving the burning of flags and in Spence v. Washington (1974) that laws dealing with fire or misuse of flags “are directly related to activity-related expression.” When cross-burning is associated with and applied to specific targeted threats to individuals, cities or states may impose prohibitions, as the Court confirmed in Virginia v. Black (2003). This case concerned a law prohibiting the burning of crosses if it is “carried out with an attempt to intimidate”. The court noted that the laws can isolate cross burning because of their long history of use as a threat in the U.S.
for ban. Since the Ku Klux Klan often used the burning of crosses to convey this message, it still carries the same threat today and is therefore not protected if it can be proven that cross-burning is being used for intimidation purposes. In cases of intimidation, the speaker communicates “a serious expression of intent to commit an unlawful act of violence against a particular person or group of individuals” and is therefore not protected by the First Amendment. Castellano, Stephanie. “Podcast: The First Amendment and the Symbolic Discourse.” Freedom Forum Institute, February 13, 2018. In the majority opinion, Justice Antonin Scalia noted that a major problem with the settlement was that it was not neutral. While those who promoted religious hatred could not use the symbols, those who promoted religious tolerance or even hatred based on an unprotected category such as sexual orientation could use the symbols as they pleased. While fighting words cannot be protected by the First Amendment as a whole, their use cannot be prohibited only to certain groups. Although R.A.V. was a unanimous decision, four concurring judges ruled against the bias order for a different reason.
They considered the ban too broad and prohibited not only words of combat, but also a lot of speech that, while offensive, was not directed at a specific or threatening person. Bell, Robert J. and Larry W. Mitchell. “First Amendment Protection of Symbolic Discourse: Flag Cases Elevate the Norm.” Loyola of Los Angeles Review 8 (1975): 689-733. O`Neill, Finbarr J. “Symbolic speech.” Fordham Law Review 43 (1975): 590-605. Symbolic speech consists of non-verbal, unwritten forms of communication, such as burning flags, wearing armbands, and burning design cards. It is generally protected by the First Amendment unless it poses a specific and direct threat to another person or public order.
Published online by Cambridge University Press: April 20, 2018 Nimmer, Melville B. “The Importance of Symbolic Discourse in the First Amendment.” UCLA Law Review 21 (1973): 29-62. The court ruled that the draft card ordinance had passed all parts of the test and was therefore constitutional. Lawrence, Frederick M. Punishing Hate: Bias Crimes under American Law. Cambridge, Mass.: Harvard University Press, 1999. Greenawalt, Kent. Words of combat: individuals, communities and freedom of expression.
Princeton, N.J.: Princeton University Press, 1995.
