How the Supreme Court Has Protected Symbolic Speech: Defending Freedom of Expression

Introduction

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The United States Constitution's First Amendment guarantees freedom of speech, a fundamental right that extends beyond mere words to actions and symbols that express dissent and protest. Through landmark cases like Tinker v. Des Moines Independent Community School District (1969) and Texas v. Johnson (1989), the Supreme Court has played a pivotal role in defining and protecting symbolic speech. Symbolic speech includes a wide range of actions that convey a message without necessarily using words, such as burning flags, wearing armbands, and performing controversial artworks. This article explores how the Supreme Court has protected symbolic speech, particularly through the example of flag burning, and the criteria for legal regulation.

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Supreme Court Protection of Symbolic Speech

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The First Amendment's protection of symbolic speech is rooted in the recognition that it is a vital form of expression. In Texas v. Johnson (1989), the Supreme Court ruled that burning an American flag is a form of symbolic speech protected by the First Amendment. Justice Stevens wrote, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” This decision was a significant victory for those who argue that the flag is a symbol, not an object of worship, and that burning it as a form of protest is constitutionally protected.

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Striking Down Bans on Flag Burning

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The Supreme Court's decision to strike down bans on flag burning, such as in United States v. Eichman (1989), solidified the protection of symbolic speech under the First Amendment. The Court ruled that these bans violated the First Amendment rights of those who wished to burn the flag as a form of protest. The opinion, written by Justice Stevens, stated, “The problem of authorizing the police to decide not only what expression is presumptively constitutional, but what expression is not, is at least as great, if not greater, than the one that led to the Framers' rejection of prior restraints.” This case made it clear that the government has no authority to prohibit individuals from engaging in symbolic speech, even if the form of expression is offensive or disagreeable to others.

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Criteria for Regulating Symbolic Speech

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While symbolic speech is protected, it is not entirely immune to regulation. The Supreme Court has set forth several criteria that must be met for the government to legally regulate symbolic speech. In Virginia v. Hicks (1996), the Court outlined these criteria:

r r r It is within the constitutional power of the Government: The regulation must fall within a legitimate area of governmental concern.r It furthers an important or substantial governmental interest: The interest must be significant and not merely speculative.r The governmental interest is unrelated to the suppression of free expression: The regulation must not target the expression itself, but rather the conduct involved.r The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest: The regulation must be narrowly tailored to achieve its goal without unnecessarily limiting free expression.r r r

These criteria provide a framework for balancing the government's interest in regulating certain forms of conduct and the individuals' right to engage in symbolic speech. For instance, a regulation could prohibit the burning of flags on federal property during a national emergency, provided that the regulation meets these criteria and is not a mere pretext for suppressing dissent.

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The Heckler's Veto and the Christian Right

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Another significant aspect of the Supreme Court's protection of symbolic speech is its rejection of the heckler's veto. The heckler's veto is the strategy of silencing a speaker by provoking a violent or tumultuous crowd to interrupt or confront them. In Brandenburg v. Ohio (1969), the Court ruled that the government cannot prohibit speech simply because it offends others. Justice Hugo Black wrote, “Until the speaker's words actually instigate unlawful action and are what in legal parlance are 'c #{@('c'), 'planning'} and preparation' -- until he strides across the 'line as it has been delineated for the guidance of those who did not assume that their license to advocate the use of force would be sustained' -- his speech is immune from governmental prohibition.” This decision safeguarded the right to express controversial ideas that may provoke disturbance without fear of prior restraint.

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The Christian right has at times attempted to use such laws as a basis for banning or regulating artwork that they find offensive. However, the Supreme Court's decisions have consistently defended the right to such forms of expression, reaffirming the principle that art and speech are protected under the First Amendment. In Serat v. National Socialist Party of America (1977), the Court upheld the right of neo-Nazis to march and distribute literature in public spaces, stating, “The Court has no power to protect individuals from discomfort and emotional disturbance, and we reject the nationwide Establishment Clause rule that would prevent the display of viewpoint-based literature in school libraries and classrooms.”

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Conclusion

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The Supreme Court's protection of symbolic speech is a testament to the enduring importance of the First Amendment in American democracy. From flag burning to controversial artworks, the Court has consistently held that the government cannot restrict individuals from expressing themselves through symbolic means, even if the expression is offensive or controversial. The criteria for legal regulation offer a valuable framework for balancing government interests and individual rights. By upholding these principles, the Supreme Court ensures that dissent and protest remain essential components of a free and open society.