THE FLAG AND THE FIRST AMENDMENT: THE SUPREME
COURT AND SYMBOLIC SPEECH
__________
THOMAS GURSKE, MA
INTRODUCTION
In an age where both minorities and majorities are demonstrating for their rights and
beliefs, it is an unpopular position to stand for the rights of a government. However, serious
thought should be given to what will happen to our society if our government fails to protect its
very structure. This structure consists of such intangibles as traditions, values, and symbols.
Symbolic Speech, which is a means of non-verbal communication, is used for its highly
dramatic effect. Mass marching, draft card burning, and misuse of the National Flag assures
press and television coverage and gains strength which would not otherwise be possible with
other means, such as mimeographed pamphlets. The problem which faces those who interpret
our Constitution is when should symbolic speech be protected by the First Amendment and when
should the government protect other citizens and itself?
First we will view how the courts have treated general symbolic cases. The courts have
had the difficult task of deciding where individual rights begin and state’s rights end. The
question has been, do the acts of non-verbal speech share the same protection as verbal speech
under the First Amendment?
Second, in order to focus in on the various decisions of the courts concerning
symbolic speech protection, cases involving the American Flag will be examined. Like all
mankind, we in this country live with many symbols of our culture. One of our most cherished
symbols through the years has been that of the American Flag.
In recent years a new generation has begun to misuse the flag as a symbol of discontent
to attack the policies of the government. This use has ranged from burning of the flag in public to
shaping it in the form of a human penis for an art display. The third section of this paper will
discuss how important symbols have been to man throughout history.
In the fourth chapter we shall return to the cases of the Supreme Court involving flag
protection to understand how the decisions have influenced the lower courts. The question of
communicative value has been left open to interpretation by the lower courts. We shall see that
there has not been a uniform position taken by the Supreme Court to protect our national symbol,
the flag.
CHAPTER I
MAJOR SYMBOLIC CASES
The first major symbolic case of recent years was that of Cox V. Louisiana. Here the
Supreme Court of the United States held that the rights of free speech and assembly do not mean
unlimited rights to address anyone at anytime at anyplace. More specifically, the court said that
the communication of ideas by picketing and marching on streets does not have the same
protection under First and Fourteenth Amendments as pure speech. The court, however,
overturned a conviction by the state of Louisiana on grounds that the statute was vague in
requiring parade permits and allowing virtual censorship in deciding who should and who should
not be allowed rights to use public places to express thoughts and ideas or to demonstrate
grievances. The court held it unconstitutionally vague and a violation of appellants' freedom of
speech and assembly under the First and Fourteenth Amendments.
Justice White dissented in this case from the opinion of the Court that Cox had a perfect
right to demonstrate and the state could not prosecute on grounds of discriminatory censorial
power abridging First and Fourteenth Amendment rights. White held that the crowd around the
courthouse, estimated at 2,000, could obstruct the sidewalk and building entrances ad infinitum.
If they could refuse to disband at one point, they could refuse at a later time as well. He held that
at some point authorities were entitled to clear the streets. To reverse the conviction, he argued,
made it a paper power for local authorities to control the streets.
One of the foremost sit-in cases involved Brown V. Louisiana. This case involved the
conviction of five black men under the breach of the peace statute. They had conducted a protest
against the use of segregated bookmobiles and the segregating of the main library by engaging in
a sit-in within the town library, without noise or disorder. When asked to leave, they refused. Mr.
Justice Fortas held, in the opinion of the court, that the actions of the petitioners were not within
the scope of the statute or if they were, that statute would be unconstitutional in its application to
the present case. As Justice White pointed out, the petitioners' conviction had to be reversed for
the record showed that they were only making normal and authorized use of the library. Once
again a statute had gone beyond its scope, as in Cox v. Louisiana.
Mr. Justice Fortas went on to State:
As this court has repeatedly stated, these rights are not confined to verbal
expression. They embrace appropriate types of action which certainly include the right in
a peaceful and orderly manner to protest by silent and reproachful presence, in a place
where the protestant has every right to be; the unconstitutional segregation of public
facilities.
Here we must assume the court has found a legal means of expression, as evidenced by
the case and the court's decision. The court still does not condone nor give constitutional nor
legal rights to those actions falling outside of the laws of the land. We also find Mr. Justice
Fortas stating that the freedom of speech in the First Amendment is not solely a verbal
protection, and other actions outside of verbal speech can be protected.
An important summary of the limits on the rights of free speech and assembly is
found in the case of People v. Huss. Here is a case where five members of the American Nazi
Party, wearing party uniforms, Steel helmets, and swastika arm bands (all symbols to most
people familiar with them) picketed a meeting celebrating the 15th Anniversary of the
Independence of Israel. Out of this public disorder resulted and convictions followed. The State
Supreme Court of California in its majority opinion held:
The right of free speech on behalf of unpopular causes does not carry with it a
license to make the streets ideological battlegrounds, to indulge in demonstrations based
on strong-arm techniques, or to deny others the use of the streets for normal movement
and passage. Free speech is not an absolute right but one subject to specific limitations
(referring to Koningsberg v. State Bar of Cal. 336 U.S. 36, 49 RP). Use of the streets for
picketing or demonstrations involves questions of domestic tranquility. Picketing, though
used to communicate ideas, is not speech, and therefore by itself not protected under the
First Amendment. (Hughes v. Superior Ct. 339 U.S. 460). The time, manner, and place
for the expression of ideas in the streets, whether by speaking, demonstrating, or
picketing, are subject to regulation and control by the police in the process of maintaining
public order. (Cox v. State of New Hampshire, 312 U.S. 569, 574).
Here in the Huss case, we find the California justices contending that the streets are not
open to everyone who has some axe to grind nor is one allowed to obstruct the normal movement
of people. The state has a right to protect domestic tranquility through the use of its police
power. The most striking point of the court was its statement that picketing was not speech and
therefore not protected under the First Amendment, apparently in direct opposition to the views
of the majority in several decisions of the United States Supreme Court.
Two of the more recent cases involving the First Amendment and rights protected other
than verbal speech were the cases of Burnside v. Byar, and Blackwell v. Issaquena County Board
of Education. Both cases involved children wearing buttons to school in direct conflict with the
dress codes of each school.
In Burnside, the court held that the right to communicate a matter of vital public concern
is understood in the First Amendment right to freedom of speech and is protected by state
officials. Students are protected against unreasonable rules and regulations imposed by school
authorities. The right of free expression can be abridged by state officials only if state interests
necessitate such. The state does have an interest in maintaining the educational system. The
school can bring discipline to bear when order is being jeopardized. The school officials cannot
infringe upon the students' rights to free and unrestricted expression as long as the actions of
such does not substantially interfere with normal school operations. The case was reversed;
students were found to have a right to wear buttons under the Fourteenth Amendment which
protects rights under the First Amendment against state action.
Now in the Blackwell case we see the reverse take place and the court adds to what is
stated in Burnside. Here the court stated that it is always within the rights of the School
authorities to issue regulations and prohibitions against, and if need be punish, acts calculated to
undermine School routine. We were reminded once again that the constitutional guarantee of
freedom of speech does not confer absolute right to speak and we are told that the laws recognize
there can be an abuse of this freedom. In this case the Statement of Judge Learned Hand in
Dennis v. United States was once again pointed out :
In each case (courts) must ask whether the gravity of the evil discounted by its
improbability justifies such invasion of free speech as is necessary to avoid danger.
Here the court found the actions of the students created an unusual degree of commotion,
affected the rights of others and undetermined authority. The school must keep order and
discipline, or school would cease to function.
Another case involving school officials and students was that of Tinker v. Des Moines
Independent Community School District.
Here we find three public school pupils in Des Moines, Iowa suspended from school for wearing
black armbands to protest the government’s policy in Vietnam.
The school board suspended the three pupils after they had been asked to remove the
armbands. The pupils sought relief from any disciplining measures that might occur and sought
damages claiming their conduct fell within First Amendment and Due Process Clause of the
Fourteenth Amendment.
The complaint was filed in the United States District Court. After an evidentiary
hearing the District Court dismissed the complaint. It upheld the constitutionality of the school
authorities’ action on the grounds that it was reasonable in order to prevent disturbance of school
discipline. Thus the court refused to follow the holdings in Burnside v. Byars, that the wearing of
symbols like armbands cannot be prohibited unless it affects or interferes with the normal
operations of the school.
The Supreme Court of the United States upon hearing the case held that in order for
the state (school officials) to justify prohibition of a particular expression of opinion, it must be
able to show that its action was taken for more than the mere fact of wanting to avoid discomfort
and unpleasantness. The court could find no reasonable objection to the pupils wearing of
armbands, since no disturbance or disorder occurred.
The court furthermore found that the school authorities had not prevented the
wearing of all symbols, merely those of the black armband type. Thus, the board, the court felt,
was choosing a particular opinion to be prohibited. The court quoted Judge Gewis who spoke for
the Fifth Circuit, when he said, school officials cannot suppress "expressions of feelings with
which they do not wish to contend."
The court went on to state that a child's education is not solely confined to the
classroom but extends to intercommunication among the students, as long as no material and
substantial interference with the school's operation nor collision with the rights of others occurs.
The First Amendment right of speech extends beyond the doors of a school and
allows children as well as adults those rights laid down in the Constitution. Our Constitution
does not allow nor permit our officials of the state to deny their form of expression. The court
thus held that the use of symbols in this instance was a protected form of communication. The
Student's mode of expression fell under the First Amendment.
In United States v. Miller, we once again run into a case where the appellant uses a
symbolic act and asks for First Amendment protection. Miller was convicted of burning his draft
card in direct violation of section 12 (b) (3) of the Universal Military Service and Training Act. It
must be noted that it is against the law not to have one’s selective service card in one’s
possession, so there would have been a violation even if Miller had burned his card at home for it
would mean that he no longer had it in his possession. Miller performed the act of burning his
draft card as a symbolic gesture of opposition to the war in Vietnam. His defense and later appeal
was based on the grounds that the amendment to the Selective Service law had been enacted by
Congress to still dissent against the war.
They acknowledged that this was true, but pointed out that Congress has power to
raise and support armies. (See Lechter v. United States 334, U.S. 742, 756-758 (1948).) The
court held that the amendment itself was narrow and did not discriminate between card-burning
as protest and or something unrelated to symbolic communication. The court went on to ask
this question, "Is all communicative action symbolic speech and is all symbolic speech protected
by the First Amendment? The range is wide and can go all the way from a closed fist to a
political assassination. One might state that peaceful acts as opposed to violent acts are protected.
But the court asked about unconventional acts, an example being People V. Stover where a
protest was waged against taxes by displaying ragged clothing on a clothes line; the court held
that a zoning ordinance prohibiting such a display was constitutional. There are numerous acts
that can take place and each act may serve to mobilize public opinion against an existing statute
or government policy; yet not all of these can be turned into conduct protected by First
Amendment rights. Thus it may be some acts take on the concept of speech-picketing (Cox v.
Louisiana) or silent sit-in (Brown v. Louisiana). These acts themselves may not be speech but are
complex questions in search of an answer.
The court concluded that forbidding destruction of Selective Service certificates serves
legitimate purposes in administering the system. Pure speech and conduct need not be regarded
as identical (Cox v. Louisiana), and the court concluded here that the appellant fell into a
category in which he could be censured for a symbolic act. Justice Jackson stated in Kovacs v.
Cooper:
The moving picture screen, radio, the newspaper, the handbill, the sound truck
and the street corner orator have different natures, values, abuses and dangers. Each, in
my view, is a law unto itself and all we are dealing with now is the sound truck.
The court held that appellant was still free to criticize national policy as vigorously as he
desired, by the written or spoken word, but that he was simply not free to destroy Selective
Service certificates.
Following the Miller case is O'Brien v. United States which had the First Circuit Court
reaching an opposite view to that of Miller. Here the court could find no purpose served by the
1965 Amendment relative to the Selective Service Act. They found it rather an attempt to stop
dissent and expression, thus a direct violation of the First Amendment. The court said:
It has long been beyond doubt that symbolic action may be protected speech.
Speech is, of course, subject to necessary regulations in the legitimate interests of the
community...but statutes that go beyond the protection of these interests to suppress
expressions of dissent are insupportable.
It is of interest to note that the court said "may be protected" speech. The case, however,
did not stop here. It was taken on appeal to the Supreme Court of the United States which
reversed the Court of Appeals decision. Here the Supreme Court said simply that "freedom of
expression" which the First Amendment guarantees does not include all modes of
communication of ideas by conduct (conduct meaning to use symbolic gestures). It said again
that on its face the l965 amendment does not abridge free speech. It deals with conduct having no
connection with free speech. Thus, it is no different than law prohibiting destruction of one's
drivers license.
The court went on to say that they would see no coming into play of the First
Amendment, even if the destruction of a registration certificate was assumed to have
communicative elements. The court also stated that when "speech" and "non-speech" elements
are combined in the same course of action the government can have an interest which justifies
limitations on First Amendment freedoms. They stated:
We think it clear that 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 suppression
of free expression; and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.
The court once again stated that Congress had constitutional power to raise and support armies
and make all laws necessary and proper to that end. The court also stated that Congress could
have passed the 1965 amendment because it believed that open and defiant destruction of the
draft cards would disrupt the smooth functioning of the Selective Service.
We have observed in these various cases that the Supreme Court of the United States
does, indeed, find that many symbolic acts have protection under the First Amendment. Be it the
wearing of black armbands in school or a sit-in at a public library, these acts can have protection.
It appears that the courts' guideline for not giving First Amendment protection to symbolic acts is
that such action involves the breaking of a valid law, a need to avoid danger, or to keep the
public peace.
Probably the most controversial symbol and its use is that of the American Flag. The
courts in recent years have had a great influx of cases involving the American Flag and its use as
a symbolic gesture. The next chapter will describe how the lower courts have ruled on recent
cases regarding the use or misuse of the American Flag and its protection as a national symbol.
CHAPTER 2
SYMBOLIC SPEECH AND THE AMERICAN FLAG:
LOWER COURT DECISIONS
A recent case involving the burning of the American flag is that of Crosson v. Silver. In
this case a three-judge United States District Court held an Arizona statute declaring "a person
who publicly mutilates, defaces, defiles, tramples upon, or by word or act casts contempt upon a
flag is guilty of a misdemeanor". . . unconstitutional as prohibiting protected acts of symbolic
speech which did not further the state's interest in preventing breach of peace. The court agreed
that the burning of the flag was symbolic speech. The court rejected the right of the state to
prohibit flag desecration based on an interest in preserving loyalty or patriotism. The court found
no unlawful acts occurring during the flag burning nor did the court believe it the proper concern
of the state to protect "sensibilities of passersby." The acts, which are clearly symbolic speech,
do not affect the legitimate state interest underlying such a prohibition as the contempt portions
of the statute. The court found the "acts which cast contempt" unconstitutionally over-broad,
citing Thornhill v. Alabama, 310 U.S. 88 (1940).
The court said that when a person uses a flag decal with a peace symbol superimposed,
he might be punished by the act, yet the court doubted that the average citizen would be
provoked to angry retaliation by such a decal. Once again the court held the protected acts of
"symbolic speech" did not conflict with the state's interest in preventing breaches of peace.
The court held that while not all conduct intended to express an idea is symbolic speech,
it is self-evident that most, if not all concerning the flag is. Such conduct is normally engaged in
to communicate an idea. The State has no property interest in the flag to support a prohibition.
Just as the flag is a symbol to the desecrator, representing perhaps oppression, hypocrisy, illconceived military ventures, or whatever, so it is a symbol to many Americans of a love as
strong as love of self, that or love of Country. The court found the legislature could find some
types of public flag desecration provocative to many viewers as the kind of personal insult which
is often followed by violence.
In Long Island Vietnam Moratorium Committee v. Cahn we find the American flag
being super-imposed with the peace symbol. This case was brought to the United States Court of
Appeals from a judgment of the Eastern District Court of New York.
The state of New York appealed this case on grounds that its use of Section l36 (a)
pertaining to the misuse of the American flag did apply to the peace symbol decal. The appellant
urged that the district court should have abstained from deciding the case since a Constitutional
question could have been avoided. This would have allowed the state to have the first
opportunity of interpreting their own statute. Mr. Cahn relied on Harrison v. N. A. A.C. P. in
which the Supreme Court observed that the federal courts should not adjudicate the
constitutionality of state enactments until the state courts have had a fair chance of passing on
them.
The court of appeals held that delaying a state court's proceedings in this case would have
in effect taken away the plaintiff's First Amendment rights. The court went on to say it did find
the statute directly mentioning decals and thus the plaintiff's emblem fell under section 136 (a).
The court felt 136 (a) was unconstitutional on its face because it was overbroad causing
First Amendment protected activity may be swept within its ambit. It allows local law
enforcement officers to prosecute traditional First Amendment activity, the court said, citing Cox
v. Louisiana.
The court held that the plaintiff's emblem was a means of expressing their views on a
vital political issue and hence, protected communicative activity unless there is a valid interest in
proscribing the emblem. The state had no such interest the court decided, consequently, the
section violated the plaintiff's First Amendment rights to freedom of speech. The court cited
Tinker v. Des Moines.
In Hodsdon v. Buckson we find the American flag being placed on the left side of a
house and the United Nations flag being hung on the right side, (the right side is the place of
honor). Here the plaintiff wanted the United States District Court to declare a section of the
Delaware Code regarding the use of the American flag unconstitutional, and to enjoin the
Attorney General from prosecuting him for violation thereof.
The State Code protected the American flag from having it publicly mutilated, defaced,
defiled, trampled on or have contempt cast upon it by word or act. Anyone who does one or all
of these acts could be subject to a fine or imprisonment or both.
The defendant charged that this statute was unconstitutionally overbroad because of the
chilling effect on the exercise of freedom of speech protected by the First Amendment.
The court agreed that the statute did invade areas of expression protected by the First
Amendment. It stated that constitutional overbreadth results when state legislatures, having
power to regulate certain conduct, strikes at those areas of conduct that are protected. When a
statute approaches a protected zone, government must regulate only with narrow specificity.
The state had urged that it had a strong interest in protecting the national symbol and
encouraging patriotism. The court said this was true but that the state had no clear purpose here
other than the proscription of expression. Unlike the O'Brien case, this law encompassed acts
which bear no relation to any interest within the legislative competence and which are intended
and understood as symbolic speech.
The court found the statute vague in intention and purpose. Where dissent is peaceful, it
said, it is within First Amendment protection. Freedom to differ is not limited to those things
which do not matter much. The true test of freedom is when the right is extended to those things
which are held close to the heart of an existing order. The statute failed to regulate with
particularity and specificity.
The state has an interest in preventing breaches of peace which may result from speech or
conduct but must not impair liberty of expression, citing Stromberg and Tinker cases as
examples of protection for symbolic acts.
In another 197O case, La Polla v. Dullaghan, the petitioner, Raymond W. LaPolla, sought
an order enjoining the respondents from flying the United States Flag at their high school at halfmast as an expression of sorrow and sympathy at the death of four students at Kent State
University and to memorialize 40,000 Americans who lost their lives in the Vietnam War.
The students with the approval of the local school board, Peekskill High School District,
voted to lower their school's flag as an honor to the student body of Kent State. This was
challenged by the Veteran's Council which asked the school board to explain their position. The
veterans upon hearing the details stated they would take whatever steps necessary to see that the
flag was not lowered. The board then decided to defer the lowering of the flag pending resolution
of the controversy.
The Board of Education stated that it felt it was in their jurisdiction to allow the flag to be
lowered for it was an analogous situation to allowing the flag to be lowered at the death of
students, teachers, school board members or school district personnel. The petitioner argued that
it was the duty of the Superintendent and the Board to comply with the proper observance of flag
etiquette and to fly the flag at full-mast pursuant to its own regulations.
The Westchester County Supreme Court stated that the Federal flag code was not
intended to proscribe behavior but was fashioned as expression of prevalent custom and usage
regarding the display of the American Flag. Federal flag code provisions are not to be accorded
full weight of statutory proscriptions but are an expression of custom and usage which is
designed for and should be used by civilian authorities, including School districts.
The court found that the flag must be flown at full-mast on every day that the school is in
session pursuant to local regulations, subject to those specifically enumerated exceptions in the
Federal Code, State Law, and Commissioner of Education Regulations or Local Regulations or
consistent with established local custom and practice.
The court went on to state that the intended purpose of lowering the flag was related to an
expression on behalf of the students and formally of an idea which sprang from and had its
totality in an expression of a political concept. The flag should not be a vehicle for the expression
of political, Social or economic philosophy. Nothing gives the school board or school district
authorization to lower the flag to half-mast for approval or disapproval of a popular cause of the
day.
The court stated that our laws and our courts have recognized that the flag and all it
symbolizes occasions deep emotional feelings in many people. The judge concluded by saying
that he felt that the American Flag was not to be used as a form of dissent.
In Parker v. Morgan we find two men indicted under the North Carolina flag desecration
statute. The statute prescribed a fine or imprisonment or both for mutilation, defacement,
defilement, or other forms of disrespect to the American Flag "by words or acts." One defendant
wore a jacket on which he had sewn an American Flag, on which was superimposed the words
"give peace a chance" and the depiction of a hand with the index and middle finger forming a
"v". The second defendant had pinned a flag to the ceiling of his car, and, in doing so, had
pierced it.
The United States District Court found the statute unconstitutionally vague and
overbroad. The court could not see the government being able to appropriate the colors red,
White, and blue and the depiction of stars and stripes. The control statute, to be constitutional,
must precisely define a flag and carefully avoid expropriation of color and form other than the
defined emblem itself. The court could not see the state dictating color and design of clothing,
even bad taste clothing.
The right to protest, said the court, includes the right to be derisive, disdainful,
contemptuous and even defiant of government and what may be thought to be in a given context
its symbols of authority, citing Board of Education v. Barnette. The court drew the line at the
point of contemptuous physical contact with the clearly defined flag and that physical protection
of the flag itself is the outermost limit of the state's legitimate interest.
The last case in this chapter is Sutherland v. De Wulf, involving the burning of an
American Flag in public. Here the plaintiff sought to have the statute concerning the flag of the
United States and Illinois declared Void, Stating that it conflicted with the federal constitution,
and his prosecution under Such a statute enjoined.
The United States District Court Stated that First Amendment freedoms are not absolute,
and their proper regulation is fully within the powers of the national and state governments,
citing United States v. O'Brien. The public burning of the flag is not an act of "pure speech."
Under O'Brien, the question is (l) does the state have a sufficient interest in regulating the
nonspeech element, (2) are the interests unrelated to the suppression of free expression, and (3)
the incidental restriction on free expression is no greater than essential.
The court said the state had an interest in the preservation of the public peace, and an
interest in the preservation of the flag as a symbol of unity on national ideals and purposes. The
flag is a national symbol and the public mutilation of the flag would tend to cheapen and degrade
it in the estimation of the people, as well as defeat the object of maintaining it as an emblem of
national power and honor, citing Halter v. Nebraska.
In this case the Court determined that the act for which the plaintiff had been indicted
was not privileged conduct and may be constitutionally punished by the state.
We have observed then, that the flag may or may not be protected as a national symbol.
The test appears to be (1) if the State statute is narrow or broad in definition, (2) if the statute is
clear or vague in regards to what is being protected, (3) if a valid First Amendment right is being
taken away, (4) and what the particular court believes to be the place of the American Flag as a
protected national symbol.
We are then, it seems to me, in need of knowing just exactly what symbols mean and
what part they play in a society. Are they vague concepts understood by a few or perhaps
something which has great hidden meaning. This, then, is what shall be discussed in Chapter III.
CHAPTER III
SYMBOLS AND THEIR MEANING
Symbols have meaning only because we give them meaning. Given that meaning, the symbol has
great significance to anyone coming in contact with it. Symbols act as a complete idea, confirmer
or help to answer a very long question with a short answer. An example would be the cross,
which stands for many things to man but on visual perception it usually means the Christian faith
with all that it entails to the person viewing it.
Within the course of human development through time, for each emerging generation
many symbols take on new meanings, different and separate from the old. We may find a symbol
having two or more meanings, and different groups may each understand the same symbol in
different ways. Symbols are our most important conditioned stimuli, and successful symbolic
communication depends upon complementary conditioning or complementary experience.
Free men obey the rules which they themselves have made. Such rules will be found
generally to impose on society behavior which in reference to a symbolism is taken to refer to
that ultimate purpose for which the society exists. The art of a free society consists first in
maintaining its symbolic code; and secondly in searching constantly to see that any revision that
is made in the code is brought about by an enlightened reason. Those societies which cannot
combine reverence to their symbols with freedom of revision, must ultimately decay either from
anarchy or from slow atrophy of a life stifled by useless remembrances of the past.
When a revolution has sufficiently destroyed this common symbolism leading to
common actions for usual purposes, a society can only save itself from dissolution by means of
force, ultimately a police state. Symbols must be refreshed for each generation by contact with
reality unless they are to become meaningless shadows in the imagination, that is unless they
become those non-touchable fantasies untouched by the sensory-world, or simply to reproduce
further ideas and emotions and feed on their offspring. Symbols must draw renewal and life from
experience. They must be kept up to date by constant testing and use.
When Sirhan Sirhan assassinated Robert Kennedy he did it in the name of all free Arabs.
When Frederich Adler shot the Austrian Prime Minister in 1916, he said it was not because he
desired publicity, or because he enjoyed the pleasure of murdering his fellow man, but because
the working classes required it. The millions who fought in both World War I and II were
fighting for "God," "Country," "Civilizations," "Humanity," "A War to end War," and a "Lasting
Peace."
Now what is it that happens when one person becomes emotionally bound to the symbol
of another, or to the collectivity? An emotional attachment occurs when the symbol of the other
is taken as one means of gratifying the affectionate impulses which are not permitted to exhaust
themselves in direct and primitive ways upon the object. We identify with others by perceiving
that they are from the same college, town, or perhaps like the same politicians or actors we do.
Of great political relevance is the type of symbol which is identifiable to us beyond the
face to face experience. The term "American" includes persons who are dead and gone and those
who are geographically remote, and thus beyond the primary experience of those identified with
the word. Interlapping identifications among persons in relation to this symbol make such
material identification possible. "America" is a word that does not apply to all who fall within
the organization area called the United States of America, for one excludes those who reside
within the legal jurisdiction without becoming psychologically organized toward the unifying
symbol.
Identification with any particular symbol by any person at any phase of his career line
initiates a complex process of symbol elaboration. His elaborations of the symbol will depend
upon the forms of expression with which his personality has been equipped through aptitude and
training.
Nations, classes, tribes, and churches have been treated as collective symbols in the name
of which the individual may indulge his elementary urges for supreme power, for conscience, for
morality, or for security. Each symbol of identification is elaborated according to the patterns
already existing in the culture for symbols of that class or classes, depending on the situation.
In l927, Dr. Alfred Whitehead stated that the human mind is functioning symbolically
when some components of its experience elicit consciousness, beliefs, emotions and usages
respecting other components of experience. The former set of components are the “symbol”, the
latter set constitute the “meaning” of the symbols.
In most cases we arrive at the meaning and importance of symbols by an involuntary
process of living and surviving in our environment, be it North or South, rich or poor. The
symbols discover their meaning for us. Thus, our sensations indicate which symbols have
importance to us. The method of human communication and thought is through symbols, through
words and signs.
When we examine how a society bends its individual members to function in conformity
with its needs, we discover that one important operative agency is our vast system of inherited
symbolism. The particular direction of individual action is directly correlated to the particular
sharply defined symbols presented to him at the moment. Mankind, it seems, has to find a
symbol in order to express itself.
The symbol evokes loyalties to vaguely conceived notions fundamental for our
spiritual natures. The result is that our natures are stirred to suspend all antagonistic impulses, so
that the symbol produces its required response in action. Thus the social symbolism has a double
meaning. It means pragmatically the direction of individuals to specific actions; and it also
means theoretically the vague ultimate conceptions with their emotional accompaniments,
whereby the symbols acquire their power to organize the miscellaneous crowd into a smoothly
running community.
The self-organization of society depends on commonly diffused symbols evoking
commonly diffused ideas, and at the same time indicating commonly understood actions. Usual
forms of verbal expression are the most important example of such symbolism. A word or an
image is symbolic when it implies something more than its obvious and immediate meaning. It
has a wider "unconscious" aspect that is never precisely defined or fully explained. The wheel
may lead our thoughts toward the concept of a "divine" sun, but at this point reason must admit
its incompetence; man is unable to define a "divine" being. When, with all our intellectual
limitations, we call something "divine" we have merely given it a name, which may be based on
a creed, but never on factual evidence." We constantly use symbolic terms to represent concepts
that we cannot define or fully comprehend. A symbol may bring or remind the viewer of a
pleasant or unpleasant memory associated with it or some aspect it represents. The sign is always
less than the concept it represents, while a symbol always stands for something more than its
obvious and immediate meaning. Symbols, moreover, are natural and spontaneous products.
Thus are symbolic thoughts and feelings, symbolic acts and situations.
You may ask many civilized people in vain for the real meaning of the Christmas
tree or of the Easter egg; the fact is they do things without knowing why they do them. The
shock of an emotional experience is often needed to make people wake up and pay attention to
what they are doing. Thus we find people during and after World War II coming to a rude
awakening for what Hitler and Nazism was about and what the symbols stood for.
The fact is that in former times men did not reflect upon their symbols; they lived
them and were unconsciously animated by their meaning. Symbols very often lift man out of his
narrow existence into a world of which sense can be made of it and all that takes place within it.
Thus it is the role of religious symbols to give a meaning to the life of man.
When we attempt to understand symbols, we are not only confronted with the
symbol itself, but we are brought up against the wholeness of the symbol-producing individual.
The more closely one looks at the history of symbolism, and at the role that symbols have played
in the life of many different cultures, the more one understands that there is also a re-creative
meaning in symbols. Symbols act very often for the whole society in attempting to establish a
collective identity.
Man is constantly at odds with his ego, and, even though not always aware of this
problem and the part symbols play, he nevertheless must find an inner strength from those very
symbols he uses. If we search long enough and deep enough into symbols or symbolic acts we
very often find meanings that are non-existent today. For example:
"The lifting up of the chalice in the air prepares the spiritualization…of the wine. This is
confirmed by the invocation to the Holy Ghost that immediately follows . . . The
invocation serves to infuse the wine with holy spirit, for it is the Holy Ghost who begets,
fulfills, and transforms . . . After the elevation, the chalice was, in former times, set down
to the right side of Christ. "
The ritual of the communion is everywhere the same, whether it is expressed by drinking of the
cup of Dionysus or of the holy Christian Chalice; but the level of awareness each brings to the
individual participant is different.
The history of symbolism shows that everything can assume symbolic significance:
natural objects (like stones, plants , animals, men, mountains, and valleys, sun and moon, wind,
water, and fire), or man-made things (like numbers, or the triangle, the square and the circle).
Man with his symbol making propensity, unconsciously transforms objects or forms into
symbols (thereby endowing them with great psychological importance) and expresses them in
both religion and visual art.
Jung continually expresses the unconscious desires of man and his need to search for a
meaning and a wholeness of his existence. Man has throughout history used symbols as a form
of fulfilling unexpressed desires stemming from unconscious thoughts and desires. Symbols have
helped him (man) achieve a wholeness with reality and the unreality of his subconscious.
Symbols are often organized within the personality so that they are principally related to
the ego, superego, or id. The symbol "Lenin" in one personality may relate chiefly to the ego,
where it is connected with nonsentimentalized characterizations of historical facts associated
with "Lenin." In another personality, the symbol "Lenin" may be reinforced from the superego
compulsions to perform acts worthy of the great revolutionist. In still another personality, the
hatreds directed against "Lenin" may indicate the strength of the appeal which is made to the
anti-authoritarian tendencies of the id, which clash with the superego, forcing the latter to
mobilize all of its resources to maintain its control in conformity with other symbols. All of these
tendencies tend to bring out how one symbol may affect various personalities and bring about
many and various effects.
Personalities often become emancipated from specific authoritarian symbols associated
with large groups like "nations," "races," or "classes." They may be "individualists," who are
emotionally released from large group names, although for expedient reasons they may play the
role publicly of "American," "proletarian," or "Christian". But these individual emancipations
are too infrequent to be distinguishing marks of mass movements. Mass emancipations may be
revolutionary passages from old to new symbols. They involve a new symbol rival to the old,
which is legitimized by a sustaining myth, and effectuated by an elite which rises to the main
posts of power and defense in the name of the new symbol and its mythological elaboration.
During acute phases of mass movements, wholesale releases from superego and mores
occur, resulting , perhaps in promiscuous killing, in orgiastic sexuality, and in wanton property
destruction, but the completed movement reimposes restraints upon this behavior in the name of
its new collective symbol.
Every Country has its symbols. For the citizens of the United States there has been the
use of the American Flag to symbolize what the country stands for. We, in most cases, pledge
allegiance to the flag throughout primary and secondary education and at public gatherings. Our
National Anthem portrays the flag as a symbol of the strength of the nation. We drape it over
coffins of war heroes and distinguished dead. It is lowered to mark the death of great leaders.
And in each state we find laws protecting the flag and rules as to how the flag is to be used.
One example of how the American Flag was used as a symbol to draw the American
people together was the photograph of the United States Marines raising the flag over Mt.
Suribachi, on Iwo Jimo during World War II. This picture represented the struggle of the
American troops and people to win the war. But more than that it showed that the country had
won another battle in its drive to preserve the ideals for which the flag stood. Here the flag
represented all the goals and principles our forefathers had fought and died for. We, as
Americans, could identify with the difficult battle that had been fought and won.
The National Anthem has words that pay tribute to our flag and what it stands for; what
American can sing such words as "that our flag was still there" and not feel proud to be part of its
great heritage? A country puts its dreams and its ideals into a symbol like the flag. It has been
said that the flag is the symbol of the Constitution as the cross is of Christianity. No flag ever
devised by man has so clearly expressed the ideals of true democracy in its design. It is the
emblem of our unity, Our power, our thought and purpose as a nation. It has no other character
than that which we give it from generation to generation. People grow to love the symbol, fight
for it, die for it. A symbol and what it stands for must stay together. They are indivisible.
We then give symbols their meaning. The symbols in a society are very often understood
in many different ways. These symbols in a very real sense help to keep a society together. One
way to destroy a society is to destroy its symbols. People very often identify with the symbols for
their meaning and understanding of the world. Symbols tend to affect us much deeper than we
are very often aware. Everything can assume a symbolic significance. For Americans the flag has
become an important symbol. It has meant freedom, power, justice, and a country united for a
common purpose.
With these ideas in mind, it is time to see how the United States Supreme Court has ruled
on the important American Flag cases. The modern symbolic speech cases dealing with the
American Flag will then be my topic for chapter IV.
CHAPTER IV
THE SUPREME COURT: FLAG CASES
The modern era of American Flag cases and the United States Supreme Court begins with
Halter v. Nebraska. The Halter case was the first case to deal with flag desecration. It involved
the constitutionality of an act of the State of Nebraska entitled, "an act to prevent and punish the
desecration of the flag of the United States." The plaintiff had been found guilty of violating the
statute by exposing for sale a bottle of beer, which for the purpose of advertising had printed a
representation of the flag of the United States upon the bottle.
The court could not see how the statute infringed on any right protected by the
Constitution of the United States. It stated that throughout the history of mankind, banners,
standards and ensigns have been used as symbols of the power and history of the peoples who
bore them. The people of the United States chose a flag to symbolically represent the existence
and Sovereignty of the Nation.
A State, the court said, may exert its power to strengthen the bonds of the Union and
therefore, to that end, may encourage patriotism and love of people among its people. A state
taking care of its people will protect the flag, knowing that it is a symbol of the country's power
and prestige. The court could not hold that any privilege of American citizenship or that any
personal liberty was violated by a state enactment forbidding the flag to be used in advertising. It
is familiar law that even the privileges of citizenship and the rights of personal liberty are subject
to reasonable restraints, as may be required for the general good.
It was for the State of Nebraska to say how far it would go by way of legislation for the
protection of the flag against improper use. All were forbidden to use the flag as an
advertisement. The statute's purpose was to promote the common good and keep peace and order
and the well-being of the people.
The next case to be discussed is that of Stromberg v. California. This case did not deal
specifically with the American Flag but did deal with the use of a red flag which represented
opposition to the government of the United States.
A young girl who was a camp leader for children in California raised the flag every day
in camp. The flag had been made in camp and was very similar to the flag of the Soviet Union.
The children stood at salute and recited a pledge of allegiance "to the flag of the workers." This
was in direct opposition to a California Penal Code which made the use of "a sign, symbol or
emblem of opposition to organized government in public, a felony."
Chief Justice Hughes, speaking for the United States Supreme Court, said that the right of
free speech is not an absolute right, and that there was no constitutional immunity for those
actions abhorrent to our (political) institutions. Although the state in exercise of its polic power
could punish an abuse of this freedom, Chief Justice Hughes struck down the guilty verdict of
Stromberg on the grounds that the Penal Code section was vague, specifically in its first clause.
The California court itself had held that it was so written that it might be construed to include
peaceful and orderly opposition to government by legal means and within constitutional
limitations.
Justice Frankfurter in Minersville District v. Gobitis said that conscientious scruples have
not relieved the individual from obedience to a general law not aimed at the promotion or
restriction of religious beliefs. The mere possession of religious convictions which contradict the
concerns of the political society does not relieve the citizen from his political responsibilities.
National unity is the basis of national security. To deny the legislature the right to select
appropriate means for this attainment is to deny them the right to protect those cherished beliefs.
The ultimate foundation of a free society is the binding tie of cohesive sentiment, "We live by
symbols." He said that the flag was the symbol of our national unity, transcending all internal
differences, however large, within the framework of the Constitution. The flag helps to
summarize all those freedoms we enjoy. A society dedicated to preserving those cherished values
our civilization may in self-protection utilize the educational process. It is here that we
unconsciously help to bind men together in a loyalty to those beliefs held dear.
A major case involving the American Flag was that of West Virginia State Board of
Education V. Barnette. This case involved the children of Jehovah's Witnesses refusing to salute
and pledge allegiance to the American Flag. This was in direct violation of a resolution by the
West Virginia Board of Education which required all teachers and pupils to participate in a salute
honoring the American Flag; failure to salute and pledge allegiance was regarded as an act of
insubordination.
The Jehovah's Witnesses sought relief under the Fourteenth Amendment. They contended
that their religious beliefs did not allow them to salute the flag.
The court in discussing the case said the sole conflict was between authority and rights of
the individual. The State had asserted power to condition access to public education to salute of
the flag and professed allegiance. The matter was one of individual opinion and personal attitude.
Here, the court felt, was a case of forcing students to declare a belief. Could the state force a
belief on the children was the question. The compulsory flag salute and pledge required
affirmation of a belief and an attitude of mind.
To sustain the compulsory flag salute the court said this was counter to the Bill of Rights
which guards the individual's rights to life, liberty, and property, to free speech, a free press,
freedom of worship, and other fundamental rights, not submitted to vote nor dependent on any
election.
To limit such fundamental rights there must be a stronger reason than fear of a lack of
patriotism. These rights are susceptible of restriction only to prevent grave and immediate danger
to interests which the State may lawfully protect.
The court went on to say that we set up government by consent of the governed, and the
Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority in
this case is to be controlled by public opinion, not public opinion by authority. The court went on
to say that if there was anything fixed in our Constitution, it is the idea that no official, high or
low, can prescribe what is orthodox in politics, nationalism, religion or other matters of opinion
or force citizens to confess by words or act their faith.
Justice Frankfurter in his dissent said he felt the minority did not maintain the right to
upset civic solidarity that all forms of government must have to survive and function effectively.
The minority have rights to their own religion and beliefs, but also the State has rights based on
civic backing, to pass laws they find beneficial to the community as a whole. . . If democracy is
not taught and practiced with guards against those people who would use its privileges to destroy
it then has no life expectancy.
One of the most publicized cases of recent years involved one Sidney Street, who burned
the American flag on a street corner in New York after hearing over the radio that James
Meredith, the civil rights leader, had been shot. Mr. Street was arrested, tried, and convicted for
violation of a state law which made it a misdemeanor to "publicly mutilate the United States
Flag."
The New York Court of Appeals stated that the Constitution protects the substance of
free speech and not the mode of expression; the means of that expression will be protected as
long as it does not interfere with the state's right to protect public health, safety, or well-being.
The court pointed out that public desecration of the American flag had been a criminal
offense in all of the States for many years. It pointed to the case of Halter v. State of Nebraska
and the Supreme Court's remark:
"insults to a flag have been the cause of War, and
indignities put upon it, in the
presence of those who revere it, have often been resented and sometimes punished on the spot."
In the case of Street, the state court found the defendant had burned the flag in public, not
for the purpose of destroying it in a dignified way, but in a contemptuous way. The court found
the act literally and figuratively incendiary and a danger to public peace. The court held that even
if no violence did occur as a result of the burning, the conviction for violation of the Statute must
stand.
This case did not stop at the State level for it was appealed to the United States Supreme
Court. The case of Street v. New York found the Supreme Court reversing the conviction. The
opinion reached by the Supreme Court is of interest as is the dissenting opinion, for here we see
two divergent points of view in the high court.
Let us first turn to the opinion of the court in this case. The court centered its argument
on the use of the term "words" in the statute which reads "it is a misdemeanor publicly to
mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act any
flag of the United States." The court stated that there was a federal issue at stake thus bringing
power of the Supreme Court into play; it was not bound by a decision of the state courts. The
court claimed that the defendant had raised the constitutional issue of the "words" part of the
statute.
The court cited Stromberg v. California to answer the question of whether the court had
jurisdiction in this case. It said that it could not determine if the court of New York reached its
decision merely on the defendant's words, "If they did that to Meredith, we don't need an
American Flag." The appellant contended that the state never relied exclusively upon the burning
of the flag. The court found the words did not incite disorder nor unlawful acts, nor were passersby shocked. Appellant's words taken alone, did not urge anyone to do anything unlawful. The
court went on to say that public expression of ideas themselves may not be prohibited because
the ideas themselves are offensive to the hearers. Finally, the court said, such a conviction could
not be supported on the theory that the remarks made by the appellant failed to show proper
respect for our national symbol which may be demanded of every citizen, citing West Virginia
State Board of Education V. Barnette.
The dissenting opinions of Chief Justice Warren and Justice Fortas are the best criticisms
of the ruling of the Supreme Court. Chief Justice Warren could not see how the Court was able
to use Stromberg v. California as a precedent for this particular case nor why it had failed to
resolve the basic questions presented in the case, is burning the flag protected symbolic speech
and did appellant burn flag for the purpose of casting contempt upon it or did he burn it in a
dignified, non-contemptuous manner? Warren points out that defense counsel claimed
constitutional protection for their client on grounds that burning the flag was a form of speech for
which Mr. Street could not be punished. The only time defendant made use of words was when
the arresting officer asked appellant if he was responsible for burning the flag. The appellant did
not dispute the prosecution's version of the facts. The words only helped to strengthen the
prosecution's case to how the flag was burned wrongfully, not in a dignified manner. Warren
pointed out that neither prosecution nor defense nor the New York court attached any
independent significance to Street's words. The record showed that to the trial judge and parties
involved there was but one issue--could appellant be criminally punished for burning the flag. He
concluded by stating that the state and the Federal government do have the power to protect the
flag from acts of desecration and disgrace.
Justice Fortas felt the States and Federal Government have the power to protect the flag
from acts of desecration committed in public. Mr. Fortas Stated that if a state statute made it a
misdemeanor to burn one's shirt or trousers on a public thoroughfare it could hardly be asserted a
citizen's constitutional rights were violated. Even if the person burning his clothes asserted he
was doing it in protest of the government's fiscal policies, it is hardly possible his rights
according to the First Amendment would prevail over the state's right of averting danger to the
public and to avoid obstructing traffic as a result of fire. This is because action, even if only for
protest, is not entitled to the same protection given to speech alone, citing Cantwell v.
Connecticut.
Beyond this, the flag is a special type of symbol, and as such requires special rules and
regulations. Statutes prescribe how the flag may be displayed and disposed of; how it may and
may not be used, citing the uniform flag code. Mr. Justice Fortas went on to state:
One may not justify burning a house, even if it is his own, on the grounds, however
sincere, that he does so as a protest. One may not justify breaking the windows of a government
building on that basis. Protest does not exonerate lawlessness. And the prohibition against flag
burning on the public thoroughfare being valid, the misdemeanor is not
because it is an act of flamboyant protest.
excused merely
The next case to deal with the American Flag in a "symbolic speech" case was that of
People v. Alfred Tennyson Cowgill. Here we find the defendant accused of defiling the
American flag by making a vest of it and by wearing it in public. The California Court of
Appeals held that he was in direct violation of subdivision of section 6l4 of the Military and
Veteran's Code. The court pointed out that if the conviction had been made On the use of words
the defendant's constitutional right of free speech would have been debased. (see Street v. New
York). But the code section, the court pointed out, applied only to acts. The court said that it
favored the dissenting opinions of Warren, Black, White and Fortas in that the states had power
to protect the American Flag from desecration and disgrace. The court acknowledged that acts
other than speech may merit protection under the First Amendment. However, like Chief Justice
Warren in United States v. O'Brien the California appellate court refused to accept the view that
an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging
in the conduct intends thereby to express an idea. Even if the defendant's actions are symbolic
speech, the court held it need not give the same rights as those who communicate by pure
speech. The guarantee of free speech covers the substance rather than the form of
communication, and state may regulate that form if a legitimate state interest is shown.
This case was appealed to the United States Supreme Court as Cowgill V. California. The
court has recently looked at the case and has dismissed the appeal. Justice Harlan wrote the
court's opinion. He said that the case did not adequately bring out the question of whether there
was recognizable communicative aspect to the appellant's conduct which consisted merely of
wearing a vest fashioned out of a cut-up American Flag.
He went on to say that the court has, as yet, not established a test for determining at what
point conduct becomes so intertwined with expression that it becomes necessary to weigh the
State's interest in prescribing conduct against the constitutionally protected interest in freedom of
expression.
The appellant, the opinion stated, had not shown that his actions conveyed a symbolic
message nor had the court of California found this to be the case. There was no indication at the
trial that the appellant had presented evidence on the question or urged any standard at the trial
for determining that issue.
The final case to be dealt with is that of People v. Radich. The defendant was convicted
of violating the flag statute of New York. The defendant had fashioned a penis out of the
American Flag and displayed it in an art gallery. The New York Court of Appeals held that
constructions, comparable to sculpture, fashioned in Such a way as protest against the Vietnam
War, using the flag to produce a phallic symbol and as a human body hanging from a yellow
noose, could properly be found within prohibitions of the flag desecration statute. A person, the
court said, may freely disseminate ideas in which he believes but he may not break a law to do it.
The court said: "Whether defendant thinks so or not, a reasonable man would consider
the wrapping of a phallic symbol with a flag an act of dishonor; he would consider the hanging
effigy a dishonor; and to a lesser and more debatable extent it might be found that wrapping the
flag in chains, attaching it to a gas meter, and fashioning the other representations involved, were
acts dishonoring the flag." The court found that the flag statute was not designed to suppress
ideas but to secure the public peace.
The case was appealed to the United States Supreme Court as Radich v. New York. The
judgment was affirmed by an equally divided court. Justice Douglas took no part in the
consideration or decision of the case.
We have found then that the state may use its powers to help strengthen the bonds of the
Union. The Supreme Court of the United States said that the State does have the right and the
power to pass legislation which protects the American Flag. We find, however, that the state may
not force expression of allegiance to the flag; this is true even if the State passes a statute to this
effect. Next we find that the court is unable to clearly express an opinion when conduct is mixed
with speech. They have ruled in this type of case that one's First Amendment right to speech
must be protected.
The court has left open the question of protection of a symbolic act if there is perhaps a
communicative aspect present. If a symbolic message is being sent the court may find it able to
protect this type of action under the First Amendment. Finally we find the court failing to decide
an appeal on a case where the flag has been used in a degrading manner in the opinion of a lower
court. The reason being that the high court has chosen not to recognize the use of the American
Flag as communication that is protected when any reasonable man would find objection to its use
as a symbol when fashioned in a disgraceful manner.
CHAPTER V
CONCLUSION
The evils the framers of the constitution sought to guard against were not those of
restraint alone; they sought to protect the free man against any action of government which
might prevent the free and general discussion of public matters absolutely essential to prepare the
people for an intelligent exercise of their rights as citizens.
Whatever else the framers of the First Amendment may have intended, there can be no
question that they included natural speech within the amendment's protection. Without any
doubt, all forms of vocal expression, which makes use of the native power of human speech, are
embraced by the free-speech guarantee. It is that right which allows us to speak freely to our next
door neighbor without fear of repression. What is excluded from the realm of free speech quite
clearly is freedom of behavior. Moreover, the notion of "symbolic speech" is also excluded, on
the grounds that there is no way of consistently distinguishing symbolic speech from complete
freedom of behavior. If the latter is excluded, then so is the former. No community can exist
without some rules and guidelines that place restrictions on behavior. These may run the gamut
from securing simple survival of the group to fostering the development of individuals.
Certainly all types of expression by the voice, as well as by the printed word, must be
deemed to come directly under the First Amendment's protection. However, when viewing the
various cases we find that stricter controls have been placed on non-speech behavior--as in
picketing cases--than natural speech. This is true because picketing, civil rights demonstrations
and the like are considered more conduct than speech. As such, they fall more into the reach of
public regulatory power than pure speech. When people picket or demonstrate they are acting as
well as speaking, doing something, as well as saying something. However, it is not necessary to
hear what they are saying; their actions alone are speaking for them.
The distinction between pure speech and non-verbal speech is of great importance. The
problem arises from a tendency to extend legal concepts once established, to ever new areas,
until they are all too frequently, applied to situations wholly unlike these for which they were
originally intended. Legal rules do not, like those in the natural sciences, have fixed areas of
strain and stress. Instead, the pressure of competing interests leads to the stretching of legal rules
to the virtual breaking point permitted by expediency.
This stretching of legal concepts is well illustrated by the kind of expression now claimed
to be protected under the First Amendment guarantee, and the attempt to further broaden this
guarantee to forms of expression, which until recently, would not have been thought of as speech
within the meaning of the First Amendment.
The framers gave to speech and the written word the coverage of the free speech and
press guarantee. Today the notion of non-verbal speech has been extended to include the burning
of the American Flag in public. Although the court may someday be persuaded to place this act
of expression within the scope of the First Amendment protection, that does not mean that such
acts must be afforded the same broad range of constitutional immunity as those of the more
accepted types of verbal expression. To the contrary, the distinction between pure speech and
non-verbal speech justifies greater governmental regulation in areas that are more than speech
alone. Though pure speech is subject to relatively little governmental interference, the same is
not true where speech is combined with conduct which is other than passive in nature and scope.
The late Justice Hugo Black said that he was opposed to efforts which extended the First
Amendment’s freedom of speech beyond speech, freedom of press beyond press, and freedom of
religion beyond religious beliefs. He stated that the provisions of the Amendment by which
speech, press, and religion are free from governmental interference do not immunize conduct
outside these particular freedoms.
It is important not to make the mistake of assuming that violation of a statute restraining
non-verbal conduct is, as a protest against that statute, necessarily a form of expression protected
by the First Amendment. Otherwise, every violation of law could be elevated into a defense
against prosecution under the law concerned. Say, if a protester could claim First Amendment
protection in burning his draft card, could he not also claim it if he failed to report for induction
or for any other violation of a law with which the violator strongly disagrees?
One could go further and ask if it really serves the interest of society to extend First
Amendment protection to all forms of non-verbal conduct, however bizarre, as soon as it is
claimed that Such conduct is intended as a form of communication. From this reasoning, could it
not further be argued that all acts of the individual are modes of expression and thus protected
under the First Amendment? Non-verbal conduct, though its purpose, whole or in part, be
expression or protest, is not placed upon the same plane of First Amendment immunity as speech
alone. Instead, it is subject to regulation by the community to keep it within the lawful bounds.
Conduct that is unlawful is not insulated from public power by the claim of free expression,
though the same would not be true of verbal speech alone.
The burning of the American Flag has been defended as a form of protest. There are
those who state it should be permitted symbolic speech. They say it is nothing more than a
picturesque or dramatic form of expressing protest. The burning of the flag violates not only the
law but the inherent values placed in that symbol. The courts have run into difficulty because the
constitution seems to try and accommodate two conflicting values, each fundamental: the need
for freedom to speak freely; and the necessity of maintaining the peace and Security of the State
and other people's rights.
The state can defend its existence and its functions, not against words or argument or
criticism, but against action. The state may and must protect citizens against those who would
destroy a National symbol such as the flag. In our system, the courts have the ultimate
responsibility of striking the balance between the state's right to protect itself and its citizens, and
the individual's right to protest. The late Justice Felix Frankfurter in his dissent in West Virginia
v. Barnette maintained that the minority did not have the right to upset the civic solidarity that all
forms of government must have to survive and function effectively. He said that the state had
rights based on civic backing to pass laws it finds beneficial to the community as a whole. In
reference to the saluting and pledging allegiance to the American flag, he said, "If democracy is
not taught and practiced with guards against those people who would use its privileges to destroy
it then it has no life expectancy."
The Supreme Court's position in symbolic cases is one of caution. The Court does
recognize symbolic acts, but not to the extent of complete First Amendment protection. The
Court stresses the communicative aspect of an act along with the justification of such an act in
public. Does such an act fall within the laws of a particular state or does it break existing
statutes? Does public disorder follow such an act or is the public offended by the symbolic
action? These are all questions the Court asks in trying to determine the constitutional rights of a
person involved in using symbolic speech as a means of expression.
The flag cases in particular have forced the Court to look at state statutes and decide if
they are vague in describing what is and is not allowed. It appears as if the flag is a protected
national symbol but acts concerning its use must be specifically spelled out and made clear for
all to understand. So far the Court has failed to make it understandable as to what is and is not
allowed in terms of flag legislation.
One reading the various decisions is not always sure if the Court completely grasps the
problem at hand. The Court it appears is backing away from making anything so direct as to
allow no room for questions. The Court evidently has decided that the question of symbolic
speech and the American Flag has lent itself to a case-by-case, look-and-see type of decision
making.
It is my opinion that the Court has failed to adequately weigh the consequences of letting
the flag be used in so many distasteful ways. This type of action can only breed contempt and
disregard for it’s meaning and purpose. The Court has not taken into consideration the long term
effects on the morale of the American people.
The position of this paper is best Summarized by Justice Frankfurter's opinion in Minersville
District v. Gobitis. He said that national unity is the basis of national security. To deny the
legislatures the right to select appropriate means for this attainment is to deny them the right to
protect those cherished beliefs. The ultimate foundation of a free society is the binding tie of
cohesive sentiment. We live by symbols. The flag helps to Summarize all those freedoms we
enjoy. It is the symbol of our national unity, transcending all internal differences. It is the symbol
of our Nation's power; it means government by consent of the people; liberty protected by law;
freedom in the truest sense.
References provided upon request.