The Freedom of Speech and Symbolic Expression:
I have an op-ed on the subject in the Wall Street Journal this morning, based on my Georgetown Law Journal article.
Related Posts (on one page):
- More on the Decline in Judicial Protection for Property Rights:
- "The American Judiciary Has Never Taken a Very Broad View of Property Rights":
- Judicial Protection for Property Rights Really Did Decline:
- "How Far the Courts Have Moved Away from Defending Property Rights"?
- The Freedom of Speech and Symbolic Expression:
Additionally, now casual WSJ readers will think you are some kind of lefty.
The WSJ article was taken from a scholarly article in a law journal, not from a post on this blog. We're lucky that a scholar of EV's stature takes the time to post here.
As for readers of the WSJ thinking EV is a lefty for upholding flag burning as free speech, it's actually those of us on the right who uphold freedom of speech even when it goes against what we hold dear.
On the other hand, the left wants to limit speech they don't like by designating it a hate crime and legislating against it.
Let's all drink a toast to our country's birthday as we celebrate our freedom.
Would it be appropriate to celebrate our country's birthday by burning a flag (if you can do so without violating an air-pollution ordinance)?
Actually, I think the right and left are just as guilty. The fact is that a substantial portion of the right and left want to limit speech they don't like, whether by medium (explicit lyrics in music, burning of flags, burning of crosses, etc). The staunchest civil libertarians I have met were on the left but were oddly conservative in their own way. For example, my deceased relative who was a former member of the Communist party, deeply involved in the ACLU, etc. and which convinced me of the logic that the 2nd Amendment protected an individual back in the early 1990's (too bad he didn't live to see Heller decided, as he would have been quite happy with that ruling).
And a very few of us (on either side) actually want to remove the exceptions to obscenity regarding First Amendment law. I do. I think the obscenity exception is a fundamental problem in modern jurisprudence. I am in a small minority in this respect.
However, where I will grant your point is that the justices on the court which are furthest left currently tend to be the ones which are most open to such speech restrictions, and that when the court has been further left, more restrictions have been added than when it is further right.
However, this isn't really, and shouldn't be made to be, a partisan issue.
That didn't take long. A cultural indicator of the new nation, perhaps?
I actually agree with what erp said.
"Actually, I think the right and left are just as guilty."
Absolutely not! While the right would like to limit speech when it comes to obscenity, blasphemy, and some forms of artistic expression, as far as I know they don't want to limit political speech. Or speech about race. Or global warming.
James Hansen told Congress that oil company executives are "guilty of crimes against humanity" and should be sent to jail. La Raza, an organization that carries considerable influence in government wants hate speech banned. They want Lou Dobbs and Pat Buchanan taken off the air.
Then let's not forget campus speech codes. Do they come from the right? Let's also not forget the current governor of Massachusetts, when he served in the justice department likened pamphlets to baseball bats.
I'm sorry when it comes to comparing the left and right on free speech, you are comparing a pebble to a boulder. Let's not bring in the old left because they don't count in today's world.
They say the amendment would bring it in line with the founders' intent. Eugene says they are wrong (rather more politely, of course).
An example was a tour by the Springboks (national side) and also a South African rugby club, which drew anti-apartheid protest wherever they went. That led to a tendency for heckler's veto, which was opposed on the basis that the visiting rugby sides had the right to not have their expression squelched by crowd control concerns. The ruggers hadn't intended any political sentiment, they just wanted to play games, but their freedom to do so had to be recast as freedom of speech (supposedly opposing that of the protesters, which was not true), because freedom of speech is legally protected better than freedom of action.
[Nothing in this post is meant to impugn in any fashion the right of private universities to have whatever code of speech they see fit.]
I think he was upset with their conduct, not their speech (and absurdly hyperbolic, of course, but that's protected).
Incidentally, wasn't it NASA that tried to squelch his (absurd but protected) speeches on climate change?
You're history is a little off. The third Republican to oppose the flag desecration constitutional amendment was Lincoln Chafee, who definitely was not a conservative. The roll call on the vote is here. Also, Hillary Clinton voted against that amendment as well; she instead sponsored an alternative statutory proposal that would have criminalized flag burning under very limited circumstances.
You're commenting on a post about the right's attempts to ban flag burning.
Just thought you should know.
"See also this blog post of mine on that very subject."
Yes I read that, and I'm pretty much in agreement with you. However, you're surveying the big picture across time and political space, while I'm concentrating on the political speech in the here and now. I don't see much threat from the right. Look at what's happening in the EU, the UK and the Commonwealth-- certain forms of political speech have been criminalized, and that didn't come from the right. What's worse is that these criminal sanctions are selectively enforced.
The leftist attitude, I think, rejects the "free speech as marketplace of ideas" metaphor as unhelpful. The metaphor is misleading because, when it comes to "truth-seeking speech," there's little reason to believe that a "marketplace of ideas" works anything like a marketplace for real goods—and indeed, there seems to be good reason to think otherwise. The metaphor also doesn't easily explain why fictive or artistic speech is protected by the First Amendment. The leftist impulse, then, tends to be to "correct" what we might call "market distortions" in the marketplace of ideas, which means to correct for the fact that the interests of the moneyed and powerful will have disproportionate control of the marketplace of ideas. Thus they target "hate speech"—which minorities are less able to protect themselves from than empowered majorities—"harassment speech"—which, again, minorities and women are poorly-positioned to ward off in patriarchal and white-privileged institutions—and campaign finance—where they try to make speech more "democratic" by minimizing the influence of moneyed interests.
The rightist attitude, on the other hand, takes the marketplace metaphor very seriously. They may recognize that there are certain "market distortions" in the marketplace of ideas, but they do not think this is a First Amendment problem. But since they do take the metaphor seriously, they recognize that there are certain kinds of speech that are not "truth-seeking" and so not suitable candidates for the "marketplace." (A real-market analogy might be drawn to harmful products like tainted drugs or fraudulent services.) Thus they cast things like flag burning in the same category as obscenity, fighting words, and profanity, whose regulation they affirm; these things do not get us any closer to "truth" and need not be protected. Indeed, there is an element to the talk about flag burning that recalls, to my mind, some Supreme Court-musing on why true threats to overthrow the government are not protected by the First Amendment. I can't recall where I picked this up, but I've seen Justices provide an extra-constitutional, almost natural-law explanation that the First Amendment need not protect those categories of speech that would seek to dispense (particularly by violent means) with its protection altogether. While flag-burning is obviously not a true threat to overthrow the government, the people who seek to regulate it seem to have this sense that it represents not just a critical statement about the government, but an actual disavowal of the protections for which it stands.
Of course, there are significant overlaps between these two attitudes—one could believe that obscene pornography ought to be regulated under either approach—and the two positions aren't mutually incompatible. But I think it accurately describes the large contours of the left-right opposition on matters of free speech. The difference between the two views has less to do with their respective onerousnesses, I think, than with their fundamental conceptions of free speech.
But, to the extent we might find it interesting to talk about "Who wants to regulate speech more?"—I think it's worth pointing out that the "rightist" view, as I've described it, is pretty much the institutional view. That is, it's the one largely accepted by the courts, and so it shouldn't be surprising if we should find less talk on the right about regulating more speech than on the left. The left, after all, are working from a different basic conception of free speech, so they have more to say.
"... righty-colleges have fairly strict speech codes as well. Brigham Young banned the mention of elements of popular culture deemed immoral and just recently lifted their ban on YouTube..."
I'm not sure what a "righty-college" is, but I pass on that for the moment. As for Brigham Young, their restrictions fall within my qualification for "obscenity, blasphemy, and some forms of artistic expression." Does BY restrict political speech in any way? Are the students free to discuss immigration, race and IQ, abortion, global warming etc?
But even political speech codes at BY don't worry me as much as such codes at Yale, Princeton, Harvard, UC Berkeley, Dartmouth, etc. These schools are graduationg students likely to become our future leaders. The speech code climate tends to produce conformity. We need mavericks who will buck the orthodoxy.
The left on the other hand wants to extend the second amendment to all sorts of symbols and expressions, while limiting actual speech that expresses political thought of which they disapprove.
The two have met in an unholy alliance to restrict political speech that annoys political incumbents (McCain-Feingold)
However much I personally would rather observe nude dancing than the standard political speech of either the right or the left on a given day, somehow I suspect that the Amendment originally refered most strongly to that which is actual speech, and that which expresses opinions on the relationships between citizens and their government.
"Incidentally, wasn't it NASA that tried to squelch his (absurd but protected) speeches on climate change?"
This is another one of Hanen's absurd claims. His recently retired boss at NASA says no one tried to restrict him in any way, and he was a general pain in the ass.
"You're commenting on a post about the right's attempts to ban flag burning."
I understand that. One might argue that flag burning is not symbolic political speech, but I won't because I think it is. The right has as they say "jumped the shark" on this one. Shame on them. If they did much more of this kind of thing I would not have made my comment.
"I think he [James Hansen] was upset with their [oil companies executives] conduct, not their speech (and absurdly hyperbolic, of course, but that's protected)."
You might know more about this than me, but I think he was upset that they funded publications critical of his work. I guess drilling, pumping, refining and distributing petroleum products is a form of conduct, but I don't think that's the issue.
/computer nerd
Great post. IMHO, the two constitutional issues that most defy ideological classification are free speech issues and preemption issues.
Good on ya, mate!
Zarkov just wrote: "You might know more about this than me"
Grammar Q: I think that's exactly right, and sounds far less pretentious that " more that I." So unless I'm talking to some sort of royal personage, this is what I tend to say.
What say you, Prof.V.
That rugby case is a great example of a situation that really had nothing to do with freedom of expression until opponents of the rugby club (anti-apartheid activitists) mae it so. They got the New York governor to prohibit the game on using the pretext of disruption. Of course, the district court issued an injunction to allow the game. In the context of this blog, the case stands for the proposition that anything can be made into a First Amendment case if its opponents seek to curtail or shut it down on political or moral grounds. It doesn't matter whether the underlying activity is real speech or symbolic speech, since the legal focus is on the censorship/prohibition aspect.
Where these terms are of course defined by the party imposing the restriction, not the party doing the expression.
I had to sign a declaration, upon being hired as a research assistant at a public university, that amounted to disclaiming any involvement in the Communist Party. I suspect it was someone on the right that imposed this requirement.
For example, you put limitations on speech that is a "threat to overthrow the government" as coming from the right. But I think the right only is associated with that view because of anti-Communism, when it was a convenient tool to use against the left. If, in the present era, that rationale were used to try to outlaw anti-government militia groups (Tim McVeigh types)---ban their publications, criminalize membership in those groups, etc.---I suspect the move would be seen as lefty rather than righty authoritarianism.
And interestingly, Europeans generally do use that rationale to ban far-right groups. The reason Germany's constitution gives for banning extremist groups is that the protections of free exchange of ideas cannot extend to groups that aim to overthrow the constitutional order and thereby undermine that very freedom. This is exactly the one you describe as the righty view, that free speech "need not protect those categories of speech that would seek to dispense (particularly by violent means) with its protection altogether".
But is this still a view the right holds? Could, for example, some of the more intemperate comments coming from right-wing talk radio advocating violent revolution be criminalized under this rationale, and if so, would that be a position that the right would agree with?
no. it would be LEGAL, but not appropriate. just because something is constitutional does not mean it is healthy, a good idea, a nice thing, an intelligent thing, etc. it merely means govt. has no authority to prohibit you from doing it. i can simultaneously believe the 1st protects the right to burn a flag, actively defend the rights of flag burners, AND think they are clueless ungrateful putzes. that goes double for the rachel corries of the world who burn US flags on the soil of a foreign "country".
When did you have to do that? Moreover I take it from the your wording "amounted to disclaiming any involvement ... " that the declaration affirmed you didn't want to overthrow the government. That sounds more like conduct than speech, but I suppose that membership in something could qualify as a form of symbolic speech.
In 2007, although as I was searching to find a link to the actual statute, it turns out that it was finally repealed in 2008. It looks like every single Republican voted against the repeal, though, with Republican state Senator Jeff Denham making the rather broad statement that "The state has every right to hold school employees accountable for their political standing". So I would consider that pretty contemporary political-speech-suppression by conservatives.
Right. Because a Constitutional amendment supported by the right's national political leadership is de minimis.
"So I would consider that pretty contemporary political-speech-suppression by conservatives."
Not at all. I see no political speech suppression because that law was old, archaic and unenforced for many decades.
Angela Davis was an open member of the Communist Party and even ran for Vice President with Gus Hall on the Communist Party ticket in 1980 and 1984. Yet she was an assistant professor at UCLA in 1969 while she was a member of the CPUSA. Until retiring in 2008, Davis was Presidential Chair and Professor with the History of Consciousness Department at the University of California, Santa Cruz and director of the Feminist Studies department.
Obviously that law meant nothing as Angela Davis was hired multiple times into the California educational system and certainly not fired for being a member of the party.
How can anyone possibly say California Senate Bill 1322 was necessary to protect "the constitutional freedoms that we have fought so valiantly for?"
I think you have to try harder.
Let's rephrase it then: open statements by conservative leaders of the present day that they believe, as a matter of principle, in state suppression of political speech that they consider outside the acceptable range of discourse. The fact that he failed to get the law enforced doesn't change the fact that Jeff Denham believes it's a legitimate use of state police power.
I don't think you accurately characterize Denham's statement because the full quote is Then again the source for this is the, at least left leaning, Guardian. We don't know what else other qualifiers are missing.
In any case, one quote, out of context, during debate on a bill hardly establishes a general pattern of the right seeking to suppress political speech. But as I have shown the whole thing is meaningless. In California you can be a member of an organization that seeks violent overthrow of the government and still hold a academic position. Compare and contrast to students in the UC system who are subjected to speech codes. Here we have a pattern repeated all over the country. That's far different from one state senator making a statement during a debate.
I never heard of Denham before. Who say he speaks for "the right."
ah, angela davis... in my college das, i was on the program board. we hired her to come speak on campus. she said things like (i'm quoting from memory) "kill the rich" and other such claptrap. when i tried to get sam kinison to perform on campus, i was told he engaged in "hate speech" and well we couldn't have that on campus. nobody made a peep about angela davis' 'hate speech'. that's one of many perfect examples of leftwing campus doublestandards in regards to speech.
"Right. Because a Constitutional amendment supported by the right's national political leadership is de minimis."
I don't agree with an amendment or laws against flag burning. But let's face it, the loss of the right to burn the US flag isn't all that oppressive if I otherwise have free speech. It's nothing compared to the attacks on free speech coming from Europe and Canada, where some bureaucrat can decide what you said constitutes "hate speech" and put you in jail.
Need I remind you of what happened to Oriana Fallaci who faced criminal charges for "insulting Islam" in her book. This is the kind of stuff I'm afraid of, and on the whole this comes from the left not the right. Of course the right's not perfect and has its hang ups, but contemporary times they are not as big a threat to free speech.
Testing, testing, 1-2-3.
Is there anything that's legally curtailed on other than political or moral grounds?
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.