More On Symbolic Speech (Testable!)

We did not have enough time in class to fully explore the topic of symbolic speech, in which actions or symbols or art or something else make political comment without using words. Symbolic speech is generally protected. For example, students in the late 1960s who wore black arm bands in high school to protest the Vietnam War were supported by the courts. Armbands are not disruptive in any way but make a statement, in this case political--so, schools that banned the armbands were suppressing free speech and were ordered to stop.

Other cases are more troubling, and it's helpful to remember that an illegal act masquerading as symbolic speech won't fly. Throwing bricks through store windows to protest U.S. trade policy still involves destruction of property and can't be excused as symbolic speech.

What about the examples below? One is protected and one is not. Take a look, and then check the comments below the photographs.

The first is burning draft cards to protest the Vietnam War. This action was not protected because the draft card was considered the property of the U.S. government and destruction of it could result in penalties. (Of course there were other ways to protest the draft or that war.)

The second is burning an American flag. Unless the flag was stolen (a crime), the Supreme Court ruled that burning a flag as political protest is protected speech. Which do we hold most dear, the flag, or the First Amendment? The court sided with the First Amendment. (Note: very few, perhaps fewer than a dozen, flags are burned in political protest in the United States annually.) Some have called for a constitutional amendment to ban U.S. flag burning. When this pops up as a matter of national attention—which it does every five or ten years—loud argument and controversy ensue. The conflict is about how far symbolic speech rights go.