I often hear people say that the First Amendment doesn't protect flagburning, because it's conduct rather than speech. My view is that burning a flag, like waving a flag, is a conventionally understood form of communication, and both should thus be treated as "speech" no less than, say, handwritten materials (which are literally neither "speech" nor "press"), elephant or donkey pins worn around campaign season, paintings that have no words, and the like.

Of course such conduct may often be restricted because it causes certain harms through its noncommunicative component -- an ordinance prohibiting fires in a brush zone could be used against flagburning. But this just reflects the analogy to literal "speech"; an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m. (even when the loudspeakers are used in the process of literal "speech"). When, however, either the loudspeaker use or the flag waving or the flag burning is banned because of its communicative effects, for instance because they convey offensive messages or supposedly diminish the emotional force of certain symbols, that is a speech restriction that should be evaluated under the First Amendment.

But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being "incivil" and creating a "hostile environment" by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there's no First Amendment problem with banning flagburning, on the theory that it's not speech, I take it that you think there's no First Amendment problems with punishing (even criminalizing) the Republicans' actions, right?

Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag's being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you'd say "Sure, no First Amendment problem," right? Or is there a distinction here I'm missing?