Freedom of expression

Nonverbal gestures and actions are meant to communicate a message. The term symbolic speech is applied to a wide range of nonverbal forms of expression. Many political activities, including marching, carrying certain kinds of flags, wearing armbands, mutilating the U.S. flag and draft cards are considered forms of symbolic expression. The U.S. Supreme Court has held that this form of communicative behavior is entitled to the protection of the First Amendment to the U.S. Constitution, but the scope and nature of that protection have varied over the years. I am going to refer to American cases because the United States has dealt with this issue quite extensively.

The Supreme Court of the United States determined almost eighty years ago that the First Amendment protects nonverbal expression. In Stromberg v. California (1931), the Court struck down a statute that prohibited the display of a red flag as a symbol of opposition to the government. The court has however always attempted to balance the protection of symbolic speech against the governmental interest in preventing harmful conduct. In evaluating regulations of symbolic expression the Court's primary consideration is whether the regulation suppresses the communicative content of the expression or simply regulates the accompanying conduct.

A less defiant form of symbolic speech was extended constitutional protection during the Vietnam War. In Tinker v. Des Moines Independent Community School District, (1969), high school officials in Des Moines, Iowa, had suspended students for wearing black armbands to school to protest U.S. involvement in the Vietnam War. Justice Abe Fortas, in his majority opinion, rejected the idea that the school's response was ‘reasonable’ because it was based on the fear that the wearing of the armbands would create a disturbance. Fortas ruled that the wearing of the armbands was "closely akin to ‘pure speech' which … is entitled to comprehensive protection under the First Amendment. Public school officials could not ban expression out of the "mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint.” The Court ruled that the suspension of students who wore black armbands to protest the Vietnam War violated the students' First Amendment rights because school officials intended to suppress the antiwar message of the protest, not any disruptive conduct the students might cause.

The Court has confronted statutes that attempt to punish individuals who burn the American flag to express dissent. In Texas v. Johnson (1989) and United States v. Eichman (1990), the Court invalidated state and federal laws prohibiting flag desecration because such laws served no governmental interest except to create a specific class of political orthodoxy—adoration of the flag—with which no one could express disagreement. The decisions demonstrated the persistence of First Amendment libertarianism even on a conservative court, but they also led to calls for a constitutional amendment that would prohibit flag burning.

Political protesters have often used the U.S. flag as a vehicle to express opposition to government policies. During the Vietnam War era, the mutilation or burning of the flag became commonplace. Such actions angered many people, and legislation was passed at the state level to prohibit this conduct. In Street v. New York, (1969), the Supreme Court had the opportunity to address the question of whether flag burning is entitled to constitutional protection as symbolic speech. However, the Court focused on the element of verbal expression also presented in this case and effectively avoided the symbolic speech issue. In a 1974 case,(Spence v. Washington)the Court did strike down a Washington state law that prohibited the display of the U.S. flag with "extraneous material" attached to it.

The Street decision left open the question of whether flag burning per se was a form of symbolic speech protected by the First Amendment. In 1989, in the highly publicized case of Texas v. Johnson, the Court surprised many observers by ruling that flag burning was protected. After publicly burning the U.S. flag outside the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson was charged with violating a Texas law prohibiting flag desecration. Johnson was convicted at trial, but his conviction was reversed by the Texas Court of Criminal Appeals, which held that the law violated the First Amendment. On a 5-4 vote, the U.S. Supreme Court agreed.

Chief Justice William H. Rehnquist, in a dissenting opinion, dismissed the idea that flag burning was a form of symbolic speech. On the contrary, he stated, "flag burning is the equivalent of an inarticulate grunt or roar that … is most likely to be indulged in not to express any particular idea, but to antagonize others” Rehnquist argued that the flag "as the symbol of our Nation, has a uniqueness that justifies a governmental prohibition against flag burning.”

The Johnson decision angered conservatives, who called for a constitutional amendment to place flag burning beyond the First Amendment's protection. When the amendment proposal failed to gain support, Congress passed the federal Flag Protection Act of 1989, 103 Stat. 777, which made flag burning a federal crime. In United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the Flag Protection Act as applied to flag burning as a means of political protest.

Writing for the majority, Justice William J. Brennan, Jr., noted that "the expressive, overtly political nature of Johnson's conduct was both intentional and overwhelmingly apparent." It was clear that "Johnson was convicted for engaging in expressive conduct." Rejecting the assertion by Texas that the law prevented breaches of the peace, the Court concluded that "Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."

In United States v. O'Brien, (1968), the Court reviewed the conviction of David Paul O'Brien for violating a 1965 amendment to the Selective Service Act that prohibited any draft registrant from knowingly destroying or mutilating his draft card. O'Brien had burned his Selective Service card on the steps of the South Boston Courthouse at a rally protesting the Vietnam War. He claimed that his act of burning his card was symbolic speech protected by the First Amendment. The government argued that it could prohibit this conduct because it had a legitimate interest in requiring registrants to have draft cards always in their possession as a means of ensuring the proper functioning of the military draft. The Court upheld the federal law prohibiting the mutilation of draft registration cards because the law was not intended to infringe the free speech rights of antiwar protesters, but rather it served a legitimate governmental interest in effectively administering national conscription.

Justices Stevens, Souter, and Ginsburg of the US Supreme Court undermined the force of their dissent by accepting that in public schools, officials may suppress student speech that ‘violates a permissible rule’ or ‘expressly advocates conduct that is illegal and harmful to students.’ Their disagreement with the Court majority, instead, turned on their interpretation of "Bong Hits 4 Jesus." The banner, they said, "was never meant to persuade anyone to do anything illegal such as taking drugs."

Although Stevens, Souter, and Ginsburg started their dissent by condemning viewpoint discrimination in public schools, they ended by endorsing it; at least when the viewpoint expressed is interpreted to advocate ‘illegal and harmful’ conduct. Like Justices Alito and Kennedy, the dissenters don't try to grapple with the difficulty of distinguishing between political dissent and advocacy of illegal conduct, although they do point out that there have been many changes in public opinion and policy over the years: the legitimacy of wars, the prohibition of alcohol, and current debates over drug legalization are examples of areas where advocacy of illegal conduct has not been readily distinguishable from political dissent. Advocacy of sit-ins and freedom rides to protest official segregation provide other examples.

The Supreme Court sided with the government, with Chief Justice Earl Warren rejecting "the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express his idea." When "speech" and "non-speech" elements are combined in the same course of conduct, a lesser burden will be placed on the government to justify its restrictions. Accordingly, the Court announced the appropriate constitutional standard:

According to the court’s ruling, a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. Applying this test to the statute involved in O'Brien, the Court found the law constitutional.

Many commentators have criticized the way the Supreme Court has treated the symbolic speech area. In particular, observers have noted that the line between ‘verbal speech’ and ‘nonverbal expression’ is impossible to draw and that the real emphasis should be placed on the motive behind the government regulation. This approach would determine whether the regulation was intended to censor certain ideas or whether it was directed at the non-communicative impact of the behavior.

There are many arguments that certain kinds of speech ought to be unprotected because they're really forms of conduct and not really speech. These weren't arguments about expressive conduct, such as flag burning or nude dancing. They focused on speech that was written or spoken words, and the speech was seen as causing harm through its content (as opposed to, for instance, because it was too loud or said by people who were blocking traffic). But something about the words or the laws restricting the words led some to respond that the restriction was actually a conduct restriction, not a speech restriction.

Should carrying a flag showing a black swastika against a red background (Nazi symbol) in public be outlawed? Nazism was what brought about the murder of millions of Jews and other innocents in Europe in the 1940s so it is easy to see why carrying such a flag in a predominant Jewish part of a community would cause concern and anger within that community.

Three masked men carrying Nazi flags tried to disrupt a Hanukkah ceremony in Fairfield, Connecticut during the evening of December 13th, 2009, but families at the event didn't let the protesters dampen their holiday spirit. The families ignored the trio while lighting a menorah on the third night of Hanukkah. The families were being screamed at and shown very offensive symbols by the men who stood just 20-yards away and they still ignored the three men.

If the act of the three men in their 20s had caused a commotion, then they could be charged with creating a disturbance but since they were ignored, all they did was to insult the families. Insulting a race of people by carrying a Nazi flag or any other obnoxious flag isn’t against the law. Because the men stood 20 yards away from the families, they couldn’t be charged with interfering with a religious ceremony.

Unfair as it might seem, if the families attacked the three men, they could be charged with assault because obnoxious as the motives of the three men were, they were within their right to express themselves by carrying the Nazi flag and screaming obscenities at the families.

After the fall of the Nazi regime, many Germans felt their new government should take steps to distance itself from that tragic and costly time in German history. Along with banning the publication or ownership of Hitler's autobiography Mein Kampf, the West German government made any display or use of the Nazi swastika illegal. This law continues to be tested with various neo-Nazi organizations routinely displaying the outlawed Nazi flag during demonstrations. Even consumer products such as t-shirts and bumper stickers can be confiscated if they contain any depiction of a swastika.

Historically, the swastika symbol denotes general peace and world harmony, not the violence and genocide associated with the Nazi movement. The word swastika is derived from a Sanskrit word that describes any form of a good luck charm. When I worked in an Indian residential school in Ontario as a senior boy’s supervisor in 1959, I asked for and received permission to re-panel my office floor with a right-facing swastika in the centre of the floor. Everyone accepted the fact that the swastika represented life and good luck to all who entered it.

Is sticking your middle finger up in the face of a police officer an expression of disapproval? Yes it is. Is it illegal, No it isn’t. In 1977, a state appeals court in Connecticut overturned the conviction of a high school student who gave the finger to a state trooper from the back of his school bus. The officer had stopped behind the bus at a red light. On the other hand, in 1983, a Texas court upheld a breach of the peace conviction against a student who flipped off his principal during graduation.

An Arizona man was pulled over in 1987 for flipping off a cop. Later a federal court ruled that "no matter how peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed." It also ruled, "We cannot condone Duran's conduct; it was boorish, crass and, initially at least, unjustified. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran's behavior may have been, it was not illegal; criticism of the police is not a crime."

My favorite story about someone flipping off a cop took place in Ontario recently. A woman was pulled over for speeding and after she got the ticket and was driving back onto the highway, she stuck her left hand out the window and stuck it straight up and flipped the cop. He pulled her over again and gave her another ticket. When you are driving your vehicle and you stick your hand straight up, you are signaling that you are going to make a right turn. Since she was turning left and not right, it was for this reason that she was charged with making a wrong traffic signal.

Freedom of expression is a very important freedom in any nation. Without that right, we would be restricted to living the lives of those foreseen in George Orwell’s book, 1984. His book is a dystopian novel about the totalitarian regime of the Party, an oligarchical collectivist society where life in the Oceanian province of Airstrip One is a world of perpetual war, pervasive government surveillance, public mind control, and the voiding of citizens' rights.

As I see it, it is proper for anyone to express himself or herself in any manner he or she wishes but not to the extent that it would cause harm to those who are being subjected to that expression. For example, it would be highly improper for someone to walk around town with a sandwich board that suggests that pets should be seized to feed the homeless. Doing such a thing would in essence end up creating a disturbance. It would also be highly improper for anyone to publicly burn the Holy Koran, or the Holy Bible or any other religious scriptures.

On the other hand, if you want to walk down the street with a sandwich board with a picture attached to it of police officers beating a suspect, you are within your rights to do so. Just make sure that you have a friend nearby who can photograph your arrest so that you can later put that photo on your sandwich board also.