thedrifter
07-03-09, 07:24 AM
Flag Burning and Free Speech
The Founding Fathers agreed that the First Amendment protected 'symbolic expression.'
By EUGENE VOLOKH
Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.
Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment to protect symbolic acts such as flag burning. As Sen. Chuck Grassley (R., Iowa) said in supporting the Vitter proposal, "if you read the debate in 1790 -- the First Amendment was not written to protect nonverbal speech . . . . [W]e want to make sure we get the Constitution back to its original intent before the Supreme Court screwed it up." Or, as Judge Robert Bork argued in his book "Slouching Towards Gomorrah," flag burning "is not speech," and the court shouldn't have held "that an amendment protecting only the freedom of 'speech' somehow protects conduct if it is 'expressive.'"
Yet the best historical evidence suggests Messrs. Bork and Grassley are mistaken. The Framers fully understood "freedom of speech, or of the press" to include symbolic expression as well as verbal expression.
The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.
Many cases and treatises, including Blackstone's "Commentaries" published in 1765 and often cited by the Framers' generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior.
This equality of symbolic expression and verbal expression was also applied to constitutional speech protection as well as to common-law speech restrictions. For instance, the first American court decision setting aside a government action on constitutional free speech or free press grounds (Brandreth v. Lance in 1839) treated the liberty of the press as covering paintings -- not just words.
Likewise, in a 1795 Pennsylvania case, the prosecution and defense agreed that erecting a liberty pole was the sort of thing to which constitutional free speech principles might apply. These tall poles, usually surmounted with a flag or a liberty cap, were originally a symbol of opposition to English government, but by the 1790s they had became a symbol expressing opposition to perceived domestic tyranny as well.
Protection of symbolic speech would have fit well with James Madison's initial draft of the First Amendment, which spoke of the people's "right to speak, to write, or to publish their sentiments." Courts and commentators (including early Supreme Court Justice James Wilson) routinely used "publish" to refer to publicly displaying pictures and symbols, as well as printing books. When Congress recast Madison's phrasing to the shorter "freedom of speech, or of the press" it was not seen as a substantive change.
The three most influential early writers on American law -- St. George Tucker, Chancellor James Kent and Justice Joseph Story -- all expressly characterized the First Amendment as protecting a right to speak, to write, and to publish.
To be sure, some in the Founding era took a narrow view of free speech. They would have allowed the punishment -- probably as "sedition" -- of stridently antigovernment sentiments, likely including those conveyed by burning the flag. But they would not have denied that the First Amendment protects symbolic expression generally. They would have just argued that both harshly antigovernment symbols and harshly antigovernment words were punishable.
The Supreme Court has long treated symbolic expression -- such as burning flags, waving flags, wearing armbands, and the like -- as tantamount to verbal expression. In fact, the first Supreme Court case (Stromberg v. California) to strike down government action on free speech grounds involved symbolic expression (the display of a red flag). That was in 1931, hardly the heyday of liberal judging.
In Stromberg, the justices didn't discuss the history to which I point here; they viewed the matter as one of logic. But on this issue history and logic point in the same direction: From the late 1700s on, American law has recognized symbolic expression and verbal expression as legally and constitutionally equivalent. "Speech" and "press" in the First Amendment don't just apply to words or printed materials. The First Amendment protects symbols, paintings, handwriting and, yes, flag burning.
Mr. Volokh is professor of law at UCLA. This op-ed is adapted from "Symbolic Expression and the Original Meaning of the First Amendment," published in the April 2009 issue of the Georgetown Law Journal.
Ellie
The Founding Fathers agreed that the First Amendment protected 'symbolic expression.'
By EUGENE VOLOKH
Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.
Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment to protect symbolic acts such as flag burning. As Sen. Chuck Grassley (R., Iowa) said in supporting the Vitter proposal, "if you read the debate in 1790 -- the First Amendment was not written to protect nonverbal speech . . . . [W]e want to make sure we get the Constitution back to its original intent before the Supreme Court screwed it up." Or, as Judge Robert Bork argued in his book "Slouching Towards Gomorrah," flag burning "is not speech," and the court shouldn't have held "that an amendment protecting only the freedom of 'speech' somehow protects conduct if it is 'expressive.'"
Yet the best historical evidence suggests Messrs. Bork and Grassley are mistaken. The Framers fully understood "freedom of speech, or of the press" to include symbolic expression as well as verbal expression.
The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.
Many cases and treatises, including Blackstone's "Commentaries" published in 1765 and often cited by the Framers' generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior.
This equality of symbolic expression and verbal expression was also applied to constitutional speech protection as well as to common-law speech restrictions. For instance, the first American court decision setting aside a government action on constitutional free speech or free press grounds (Brandreth v. Lance in 1839) treated the liberty of the press as covering paintings -- not just words.
Likewise, in a 1795 Pennsylvania case, the prosecution and defense agreed that erecting a liberty pole was the sort of thing to which constitutional free speech principles might apply. These tall poles, usually surmounted with a flag or a liberty cap, were originally a symbol of opposition to English government, but by the 1790s they had became a symbol expressing opposition to perceived domestic tyranny as well.
Protection of symbolic speech would have fit well with James Madison's initial draft of the First Amendment, which spoke of the people's "right to speak, to write, or to publish their sentiments." Courts and commentators (including early Supreme Court Justice James Wilson) routinely used "publish" to refer to publicly displaying pictures and symbols, as well as printing books. When Congress recast Madison's phrasing to the shorter "freedom of speech, or of the press" it was not seen as a substantive change.
The three most influential early writers on American law -- St. George Tucker, Chancellor James Kent and Justice Joseph Story -- all expressly characterized the First Amendment as protecting a right to speak, to write, and to publish.
To be sure, some in the Founding era took a narrow view of free speech. They would have allowed the punishment -- probably as "sedition" -- of stridently antigovernment sentiments, likely including those conveyed by burning the flag. But they would not have denied that the First Amendment protects symbolic expression generally. They would have just argued that both harshly antigovernment symbols and harshly antigovernment words were punishable.
The Supreme Court has long treated symbolic expression -- such as burning flags, waving flags, wearing armbands, and the like -- as tantamount to verbal expression. In fact, the first Supreme Court case (Stromberg v. California) to strike down government action on free speech grounds involved symbolic expression (the display of a red flag). That was in 1931, hardly the heyday of liberal judging.
In Stromberg, the justices didn't discuss the history to which I point here; they viewed the matter as one of logic. But on this issue history and logic point in the same direction: From the late 1700s on, American law has recognized symbolic expression and verbal expression as legally and constitutionally equivalent. "Speech" and "press" in the First Amendment don't just apply to words or printed materials. The First Amendment protects symbols, paintings, handwriting and, yes, flag burning.
Mr. Volokh is professor of law at UCLA. This op-ed is adapted from "Symbolic Expression and the Original Meaning of the First Amendment," published in the April 2009 issue of the Georgetown Law Journal.
Ellie