Wednesday, October 12, 2011


Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it.[1] Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers did not address this issue in the Bill of rights is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression.[2] Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.
While writing the majority opinion for United States v. O'Brien, Chief Justice Warren described a series of guidelines used to determine whether a law that restricts speech violates the First Amendment. These guidelines must remain neutral in relation to the subject of the speech at hand (i.e., a speech that criticizes government action and is believed to violate a law must be treated the same way as a speech under identical circumstance, but praises the government as opposed to criticizing.) It must be noted that the O'Brien test is not meant to be the absolute deciding factor in cases involving non-verbal speech, but an additional tool to invoke against prohibitions.
The O'Brien Test is thus: The law in question must

* be within the constitutional power of the government to enact.
* further an important or substantial government interest.
o That interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it.)
o Prohibit no more speech than is essential to further that interest.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools. The Tinker test is still used by courts today to determine whether a school's disciplinary actions violate students' First Amendment rights.
In December 1965, Des Moines, Iowa residents John F. Tinker (15 years old), John's younger sister Mary Beth Tinker (13 years old), and their friend Christopher Eckhardt (16 years old) decided to wear black armbands to their schools (high school for John and Christopher, junior high for Mary Beth) in protest of the Vietnam War and supporting the Christmas Truce called for by Senator Robert F. Kennedy. The principals of the Des Moines schools adopted a policy banning the wearing of armbands to school. Violating students would be suspended and allowed to return to school after agreeing to comply with the policy. Mary Beth Tinker and Christopher Eckhardt chose to violate this policy, and the next day John Tinker also did so. All were suspended from school until after January 1, 1966, when their protest had been scheduled to end.

A suit was not filed until after the Iowa Civil Liberties Union approached their family, and the ACLU agreed to help the family with the lawsuit. Their parents, in turn, filed suit in U.S. District Court, which upheld the decision of the Des Moines school board. A tie vote in the U.S. Court of Appeals for the 8th Circuit meant that the U.S. District Court's decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the Supreme Court directly. The case was argued before the court on November 12, 1968.
The court's 7 to 2 decision held that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. The court observed, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[1] Justice Abe Fortas wrote the majority opinion, holding that the speech regulation at issue in Tinker was "based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam." The Court held that in order for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."[2] The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.
Tinker remains a viable and frequently-cited Court precedent, though subsequent Court decisions have determined limitations on the scope of student free speech rights. In Bethel School District v. Fraser, a 1986 case, the Supreme Court held that a high school student's sexual innuendo–laden speech during a student assembly was not constitutionally protected. Fraser qualified Tinker in making an exception for "indecent" speech. Hazelwood v. Kuhlmeier, where the court ruled that schools have the right to regulate, for legitimate educational reasons, the content of non-forum, school-sponsored newspapers, also limits Tinker's application. The Court in Hazelwood clarified that both Fraser and Hazelwood were decided under the doctrine of Perry Education Association v. Perry Local Educators Association. Such a distinction keeps undisturbed the Material Disruption doctrine of Tinker, while deciding certain student free speech cases under the Nonpublic Forum doctrine of Perry. In Morse v. Frederick, the Court held that schools may, consistent with the First Amendment, restrict student speech at a school-sponsored event, even those events occurring off school grounds, when that speech is reasonably viewed as promoting illegal drug use. Mary Beth Tinker continued to support freedom of speech and demonstrated in front of the Supreme Court during Morse v. Frederick.

In 1984, during a protest against the policies of the Reagan administration in Dallas, Texas, Gregory Lee Johnson doused an American flag that was given to him by a fellow demonstrator with kerosene and set it alight while those around him chanted "America the red, white and blue, we spit on you." He was later arrested and convicted on a flag desecration law in Texas, and sentenced to one year in prison and a $2,000 fine. The court ruled 5 to 4 in favor of Johnson. Justice Brennan wrote that because such other actions in relation to the flag (such as saluting, and displaying) are considered to be a form of expression, so must too the burning be, and that Johnson's protest was "'Sufficiently imbued with elements of communication' to implicate the First Amendment." He also explained that the relevance of the O'Brien test is limited "in which 'the governmental interest is unrelated to the suppression of free expression'", as the Texas law in question had its interest in preventing any violent reaction that my spring from those witnessing the burning of the flag. This case helped solidify the condition that any law that inhibits freedom of speech must have an important and compelling interest to do so.[6]

Cohen v. California
Main article: Cohen v. California

In 1968, Paul Cohen entered a Los Angeles Courthouse wearing a jacket that displayed the words "Fuck the Draft" knowing that the jacket displayed these words. Though he had removed the jacket and placed it under his arm before entering the courthouse, a police officer witnessed the jacket and slogan in the corridor and arrested him for "willingly and unlawfully and maliciously disturbing the peace and quiet by engaging in tumultuous and offensive conduct." [6]

The Court voted 5–4 in favor of Cohen. Justice Harlan wrote "[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." In the court's opinion, Harlan also penned the now famous line "one man's vulgarity is another's lyric". [7]

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