The Volokh Conspiracy - Symbolic Expression and the Original Meaning of the First Amendment:

I'm pleased to say that this article of mine is now officially out, in 97 Georgetown Law Journal 1057 (2009). I blogged about it last year, so I won't say much about it here, but I just thought I'd post the Conclusion:

I hope I've shown that the original meaning of the First Amendment protects symbolic expression to the same extent that it protects spoken, written, and printed verbal expression.

I doubt the Framers of the First Amendment focused much on this issue: then as now, symbolic expression was much less important than verbal expression. But if you asked lawyers of the era whether symbolic expression was covered by the new provision, they would likely have answered "yes," as the sources I cite above suggest.

This doesn't tell us whether the Framers would have understood any particular form of symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing, as constitutionally protected. Perhaps they would have recognized a special exception for flag desecration, though I doubt it. Perhaps they would have concluded that some forms of expression, whether symbolic, printed, or verbal, were so likely to lead to breaches of the peace that they merited restriction; it's hard to tell. Perhaps some would have concluded that any subsequent punishments were permissible, so long as they were imposed by juries.

Perhaps they would also have concluded that symbolic expression is protected only against laws that target it precisely because of what it expresses, and not against generally applicable laws (such as public nudity laws) that incidentally cover expressive conduct. The original meaning of the First Amendment is in many ways hard to determine.

But most critics of the Court's symbolic expression cases don't seem to seek a wholesale rejection of eighty years of broadly libertarian Supreme Court precedent on the freedom of speech. Rather, they criticize only the symbolic expression doctrine, which to them seems the most clearly inconsistent with text and original meaning, and which can be reversed without vast shifts in the law.

And on this narrow question -- was symbolic expression understood as legally tantamount to verbal expression, and thus protectable by "the freedom of speech, or of the press" even when the expression wasn't communicated through spoken words or through printing? -- the original meaning is comparatively clear. Seventy-five-year-old Supreme Court precedent and original meaning point in the same direction: symbolic expression and verbal expression ought to be equally covered by the First Amendment.

	[Eugene Volokh, April 23, 2009 at 1:11pm] Trackbacks Symbolic Expression and the Original Meaning of the First Amendment: I'm pleased to say that this article of mine is now officially out, in 97 Georgetown Law Journal 1057 (2009). I blogged about it last year, so I won't say much about it here, but I just thought I'd post the Conclusion: I hope I've shown that the original meaning of the First Amendment protects symbolic expression to the same extent that it protects spoken, written, and printed verbal expression. I doubt the Framers of the First Amendment focused much on this issue: then as now, symbolic expression was much less important than verbal expression. But if you asked lawyers of the era whether symbolic expression was covered by the new provision, they would likely have answered "yes," as the sources I cite above suggest. This doesn't tell us whether the Framers would have understood any particular form of symbolic expression, whether flag burning, liberty pole raising, armband wearing, or dancing, as constitutionally protected. Perhaps they would have recognized a special exception for flag desecration, though I doubt it. Perhaps they would have concluded that some forms of expression, whether symbolic, printed, or verbal, were so likely to lead to breaches of the peace that they merited restriction; it's hard to tell. Perhaps some would have concluded that any subsequent punishments were permissible, so long as they were imposed by juries. Perhaps they would also have concluded that symbolic expression is protected only against laws that target it precisely because of what it expresses, and not against generally applicable laws (such as public nudity laws) that incidentally cover expressive conduct. The original meaning of the First Amendment is in many ways hard to determine. But most critics of the Court's symbolic expression cases don't seem to seek a wholesale rejection of eighty years of broadly libertarian Supreme Court precedent on the freedom of speech. Rather, they criticize only the symbolic expression doctrine, which to them seems the most clearly inconsistent with text and original meaning, and which can be reversed without vast shifts in the law. And on this narrow question -- was symbolic expression understood as legally tantamount to verbal expression, and thus protectable by "the freedom of speech, or of the press" even when the expression wasn't communicated through spoken words or through printing? -- the original meaning is comparatively clear. Seventy-five-year-old Supreme Court precedent and original meaning point in the same direction: symbolic expression and verbal expression ought to be equally covered by the First Amendment.