Symbolic Speech

In 2016, a professional football player named Colin Kaepernick knelt during the national anthem. Some people were angry because they viewed the tradition of standing and placing your hand over your heart during the national anthem signified respect for the United States. But Kaepernick noted that he was trying to use this action as a symbol of protest against the oppression of Black people in the United States.

If you've ever seen a symbol - maybe a logo, flag, or gesture - that you disagreed with, you can see how symbols communicate something, even if they don't use words. In the United States, protests that use actions or symbols are protected just as much as protests that are verbal under the Constitutional right to freedom of speech. Non-verbal protests like Kaepernick's show that actions or symbols can convey messages just as powerfully as verbal speech.

Symbolic Speech Definition

Symbolic speech refers to forms of expression that don't strictly use words. While written or spoken words are called "pure speech", symbolic speech includes behaviors, actions and symbols that convey a message without words.

Symbolic Speech First Amendment

The Constitution protects the right to freedom of speech in the First Amendment, which reads:

The Constitution doesn't define what "speech" means. When the Constitution was drafted in 1787, most communication happened in written format - in books, newspapers, pamphlets, etc.

Today, we have expanded the understanding of "speech" to mean freedom of expression, which covers a much broader understanding of speech. Importantly, it has also been expanded to mean nonverbal communication and forms of expression that don't strictly rely on words.

Supreme Court Symbolic Speech

Just like the Kaepernick case, symbolic speech often brings up controversy between the side conveying the message and the other side that finds it offensive or inappropriate. Some of the most controversial symbolic speech cases happened around the Vietnam War protests, prompting the Supreme Court to step in and decide whether it should be protected or not.

United States v. O'Brien (1968)

The Vietnam War (from 1955 to 1975) was extremely unpopular in the 1960s. Many citizens felt that the war was pointless and the deaths of thousands of American soldiers and Vietnamese citizens were abominable. At the same time, the government began relying on the draft to recruit more soldiers to fight in the war.

People protested against the Vietnam War for years, including this demonstration in 1965. Source: uwdigitalcollections, Wikimedia Commons, CC-BY-2.0

Men who received their draft notices turned to various forms of protest. One man, David O'Brien, burned his draft notice in front of a courthouse. He was found guilty of violating a 1965 law that prohibited the mutilation of draft cards. O'Brien argued that he had the right to burn it because he did it to convey a message, which is protected as symbolic speech.

When the case went to the Supreme Court, they disagreed with O'Brien. They acknowledged that his action could be considered symbolic speech, but that the law against mutilating draft notices represented a valid government interest since the draft notices contained important information.

Burning draft cards became a popular protest against the Vietnam War. Source: Universal News, Wikimedia Commons

Four-Part O'Brien Test

Chief Justice Earl Warren developed a four-part test to assess whether laws violate the right to symbolic speech. To be considered valid, the law needed to:

1. be within the government's constitutional authority
2. further a substantial government interest
3. have a neutral purpose (i.e. not intended to suppress free speech)
4. be the least restrictive means of attaining the government interest.

Because the government needed the drafts to maintain intact in order to conduct the drafting process smoothly (a purpose that was unrelated to the suppression of symbolic speech), the Court ruled against O'Brien.

Tinker v. Des Moines Independent Community School District (1969)

Students were also getting involved in the anti-war movement in the 1960s. A group of high school students decided to wear black armbands with white peace symbols to represent mourning for the lives lost in the war. In response, the school created a new policy prohibiting armbands. The students wore them anyway. When they were suspended, they took the issue to court.

The Supreme Court sided with the students based on a few key points:

• The school's policy intentionally singled out armbands in an attempt to suppress the students' expression.
• The students' protest was peaceful and didn't disrupt the school's functioning
• Students have the right to freedom of symbolic speech, even when they're on school property.

The Tinker Standard

In their decision, the Supreme Court also created the Tinker Standard. The Tinker Standard says that schools can't inhibit students' use of symbolic speech unless it will cause substantial interference in school activities or invade the rights of others.

Symbolic Speech Examples

Other highly controversial examples of symbolic speech include flags and offensive speech.

Flags and Symbolic speech

In Stromberg v. United States (1931), the Supreme Court had to deal with whether flying the red flag of the Soviet Union (and the Communist Party of the United States) was a protected form of symbolic speech. Yetta Stromberg, who had flown the flag, was found guilty under a California law that prohibited symbols that signaled opposition to government or invitation to anarchy. After reviewing the California law, the Supreme Court said that "opposition to government" could include peaceful protests, which were protected under freedom of speech. Penalizing a non-violent demonstration would undermine the values of democracy, so they ruled in Stromberg's favor.

In Spence v. Washington (1974), the Supreme Court again sided with freedom of speech over flag laws. Harold Spence displayed an upside-down American flag with a peace sign taped to it to protest the deaths of anti-Vietnam War protestors. He was arrested based on a Washington statute that prohibited desecrating or altering the American flag. The Supreme Court decided that Spence's action conveyed a message and thus was protected under the First Amendment.

Texas v. Johnson (1989)

The Supreme Court also ruled that burning the American flag in protest is protected under free speech. Gregory Johnson burned an American flag in front of a courthouse during a protest against President Reagan's policies. He was arrested under a Texas law prohibiting the desecration of the American flag. According to Texas courts, the act constituted fighting words, which are not protected under free speech. They argued that Texas's interest was in protecting the flag as a symbol of national unity.

Flag burning is permitted to dispose of damaged flags as part of a ceremony, as shown above. Burning a flag as a protest became very controversial. Source: BotMultichillT, Wikimedia Commons, CC-PD-Mark

The Supreme Court sided with Johnson, saying that the audience taking offense to the action didn't qualify it as fighting words. Justice Brennon said that the government can't ban the "expression of an idea simply because society finds the idea itself offensive or disagreeable."

Offensive Speech

At times, the Supreme Court has protected the right to free speech, even if it was considered very offensive.

For example, the case of Village of Skokie v. National Socialist Party of America (Ill) (1978) started when the National Socialist Party of America (NSPA), which was based on the beliefs of Hitler's Nazi party in Germany, applied to hold a demonstration in the village of Skokie, Illinois. They said the demonstration would be peaceful, with no speeches, but they would hold signs and wear uniforms that displayed the Swastika (the symbol used on Nazi uniforms).

Skokie's population was over 50% Jewish, many of whom had survived the Holocaust during World War II. Skokie's residents reacted vehemently against the demonstration and tried to throw several roadblocks to prevent it from happening, such as requiring hundreds of thousands of dollars worth of insurance and banning military-style uniforms.

The NSPA tried to take the case to court, arguing that their first amendment rights were being violated. The American Civil Liberties Union (ACLU) decided to represent them in the case. While they disagreed with the Nazi views (the lawyer who represented the case was Jewish himself), they felt that Skokie's laws were problematic. They argued that the same laws being used to suppress the NSPA could be (and already were) used to suppress civil rights leaders like Martin Luther King Jr.

The Supreme Court agreed, saying that the feelings of the listener could not be considered valid reasons for suppressing symbolic speech. They ruled that the Swastika did not amount to "fighting words" and thus needed to be protected by the First Amendment.

Symbolic Speech Court Cases

The standard for deciding whether offensive speech is protected or prohibited has been difficult to enforce. In R.A.V. v. St. Paul (1992), which centered around juveniles who burned a makeshift cross on a Black family's front lawn, the Supreme Court struck down a Minnesota law called the Bias-Motivated Crime Ordinance which banned displaying a swastika or burning a cross "in an attempt to arouse anger or alarm on the basis of race, color, creed, or religion." They said that the law was overly broad and content-based, meaning that it sought to specifically suppress one particular group's free speech.

Ten years later, the Supreme Court drew a different distinction. In Virginia v. Black (2003) they ruled that states could ban burning a cross "with the intent to intimidate" without violating the First Amendment. The Case dealt with a Ku Klux Klan leader who led a cross-burning ceremony in Virginia. They contended that there could be cases where burning a cross was expressive and thus protected, but others where it represented a "true threat" and therefore not protected.