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.[1] 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.[2] 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.
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While writing the majority opinion for United States v. O'Brien, 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
In December 1965, a group of five students, including lead plaintiff John Tinker and his sister Mary Beth Tinker, wore black armbands 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. [2] Justice Fortas, delivering the opinion of the court, held the following:
"On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of Investigation, 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 certificate 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." [5]
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.[2]
In 1984, during a protest against the policies of the Reagan administration in Dallas, Texas, Gregory Lee Johnson doused an American flag 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.[6]
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 police 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." [6]
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". [7]