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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.

Lebesgue:
Eugene, this is off-topic, but I was wondering if you wouldn't mind posting your thoughts on the Ricci oral argument. A quick read of the transcript makes me think it'll be a 5-4 victory for the firefighters , but as virtually everyone in the media and blogosphere has more or less ignored what happened yesterday, it'd be nice to have another person's take.
4.23.2009 1:23pm
J. Aldridge:
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.

I think they did in terms of symbolic expression's through cartoons that dealt strictly with criticism of public officials and their public affairs. The entire purpose of freedom of speech and the press was to remove the common law doctrine of seditious libel so people could freely engage in discussing the affairs of government.
4.23.2009 1:32pm
Cityduck (mail):
Great article!

One question (or maybe really a pet peeve):

You state that:

And this equivalence of symbolic and verbal expression fits well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that "the freedom of speech, or of the press" was tantamount to Madison's original draft of the clause: the "right to speak, to write, or to publish." And the term "to publish" included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.16


Aren't you here conflating "original meaning" with "original intent" by arguing that the "original meaning" of the First Amendment is evidenced by legal commentators after the fact determination of the "original intent" as evidenced by Madison's drafting history?

It seems to me that the opinions of legal commentators are a very bad source for "original meaning" because they tend to be after the fact and to be infected with legislative intent analysis. If you really want to demonstrate the "original meaning" you would be far better off focusing on what was said in the ratification debates.
4.23.2009 2:28pm
J. Aldridge:
Cityduck wrote: "If you really want to demonstrate the "original meaning" you would be far better off focusing on what was said in the ratification debates."

And that would lead you to the trial of Peter Zenger. What about post convention too?

James Madison in 1799 wrote, "In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law."

The Democratic-Republican caucus included the following in their 1800 platform: "An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states. … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents."
4.23.2009 2:41pm
Edward A. Hoffman (mail):
That's right, give away the ending......
4.23.2009 2:57pm
Perseus (mail):
"An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states.

In other words, seditious libel was the proper province of the states.
4.23.2009 3:04pm
LarryA (mail) (www):
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.
I think they had a fondness for tea parties.
4.23.2009 3:05pm
Clayton E. Cramer (mail) (www):

I think they had a fondness for tea parties.
But this is hardly a sign that they regarded this as a constitutionally protected act. They did send an apology to the owner of the dock that was damaged, and hired a locksmith to repair the lock.
4.23.2009 6:53pm
Clayton E. Cramer (mail) (www):

I think they had a fondness for tea parties.
Patriot mobs also tarred and feathered Loyalists, and at one point, literally dismantled the Lieutenant Governor's house while he and his terrified family were inside. That's hardly a sign that they would have considered such behavior to be constitutionally protected.
4.23.2009 6:55pm
Clayton E. Cramer (mail) (www):
This is a very persuasive paper, Professor Volokh. I guess the only reason that I have been skeptical of the symbolism claim is that it has been used to justify actions that would have been considered obscenity by the Framers (nude dancing, for example). But the flaw in that argument is not that symbolic speech lacks protection; it is that obscenity is not protected, and it doesn't matter whether it is nude dancing or the written word.
4.23.2009 7:13pm
Eugene Volokh (www):
CityDuck: Tucker, Kent, and Story were legalese treatise writers, whose job was mostly to describe relatively uncontroversial understandings of the legal terms involved. At times, of course, they expressed their own controversial opinions; but when all three of them agree, that's pretty good evidence that this was the understood constitutional meaning from 1803 to 1833. It's not completely open and shut evidence, but it strikes me as quite persuasive, especially given the other evidence I marshalled in the paper.

Of course, it's possible that the meaning changed dramatically from 1791 to 1833, or even (though much less likely) from 1791 to 1803. But then we have the fact that Madison suggested the "right to speak, to write, or to publish" in his draft of the First Amendment, coupled with the absence of evidence that the change (including the omission of "to write") was a deliberate decision. So it's possible that (1) the First Amendment as enacted was understood in 1791 as being narrower than Madison's proposal, but (2) by 1803 it was understood as being much the same as Madison's proposal, and (3) it continued to be understood this way not just by Tucker but also by Kent and by Story. But I don't think that it's likely; the likelier interpretation, I think, is that Tucker, Kent, and Story accurately captured the original meaning of the provision.

Again, the perfect evidence would have been a constitutional law treatise written in 1791. But there were no constitutional law treatises written in 1791. We have to infer from other sources, mostly slightly later ones. But it seems to me that such inferences, while a second-best option, may still be quite probative -- and the Court has likewise taken this view in other contexts (often quite uncontroversially, as in some of the cases that I cite in that section).
4.23.2009 8:04pm
J. Aldridge:
EV said: "At times, of course, they expressed their own controversial opinions; but when all three of them agree, that's pretty good evidence that this was the understood constitutional meaning from 1803 to 1833."

The problem Tucker, Kent, and Story had in matters like the First Amendment was they towed the Blackstone line, which Cooley proved was incorrect in regards to speech and the press. Kent's major problem was he didn't think the revolution changed much!

EV said: "But there were no constitutional law treatises written in 1791."

Probably because Benjamin Franklin had beat the subject to death.
4.23.2009 9:58pm
Clayton E. Cramer (mail) (www):

EV said: "But there were no constitutional law treatises written in 1791."

Probably because Benjamin Franklin had beat the subject to death.
I wasn't aware that Franklin had written in this area. Can you give me some examples?
4.24.2009 1:04pm
J. Aldridge:
Excerpt from the Pennsylvania Gazette, April 8, 1736:

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.
4.24.2009 1:40pm
Clayton E. Cramer (mail) (www):
I thought you meant constitutional law treatises. Thanks for the clarification.
4.24.2009 1:48pm
LarryA (mail) (www):
Patriot mobs also tarred and feathered Loyalists, and at one point, literally dismantled the Lieutenant Governor's house while he and his terrified family were inside. That's hardly a sign that they would have considered such behavior to be constitutionally protected.
I'll be more explicit next time. My point was that they did understand the symbolic nature of the act and chose to employ it. That would at least indicate that they saw it as a legitimate protest.

OTOH, of course most of that night's "Indians" weren't framers of the First Amendment, which didn't come along for another sixteen years. By 1789 the Boston Tea Party was part of the Founding Legend, and I doubt anyone would have denounced it.
4.24.2009 2:45pm
J. Aldridge:
No, I said Franklin had already extensively covered the subject of speech and of the press that there was little to add in 1791.
4.24.2009 2:56pm
Cityduck (mail):
EV:

The problem I have with relying upon Tucker, Kent, and Story for the "orginal meaning" of the Constitution is that (1) they were writing from 12 to 40 years after the adoption of the Constitution (and so are not sources contemporaneous with the adoption of the Constitution), and (2) were writing from the perspective of legal scholars (which might well have meant a paradigm of "original intent") not from the perspective of diviners of "original meaning." The fact they agree with each other is irrelevant, because they all come from the same analytic perspective.

In other words: Not only are the writings of Tucker, Kent and Story not "completely open and shut evidence," they don't purport to be and aren't evidence of "original meaning" at all.

Joseph Story, for example, did not base his analysis on what he thought the "original meaning" of the Constitution was. Instead, he attempting to discern original intent:

"The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution."

I agree with you that the understood "meaning" of the First Amendment might well have changed in the 12 to 40 years after its adoption. That would hardly be unprecedented, in fact, it would be expected given that what the Constitution created an aspirational new system that quickly ran up against the practical realities of governing a growing country with diverse state governments. Which is, again, why I believe that the after-the-fact opinions of Tucker, Kent and Story cannot support an "original meaning" analysis.

Your continuing citation of Madison's unadopted drafts would make sense if you were attempting to discern "original intent," but you're not. And even if you were attempting to discern "original intent," those drafts were rejected, and thus it is hard to see the wisdom of arguing that those drafts reflect the true meaning of the Constitution when different language was ultimately adopted.

The best evidence of "original meaning" is the words of the folks who voted to ratify the Constitution during the ratification debates as to their understanding of its provisions, and the statements in the popular press on that point.

If the contemporaneous sources don't provide us with sufficient information to discern the "original meaning," then it seems to me that we have to question the value of that analytic paradigm. Attempting to salvage the analytic tool of "original meaning" interpretation by arguing we can "infer" that meaning from after-the-fact legal commentary that does not purport to present the "original meaning" seems a little perverse.
4.24.2009 5:56pm

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