Symbolic Expression (7)

Speech is generally thought of as words, written or spoken. However, there are many different ways people communicate; most of human communication is nonverbal. Images, and other symbols, are particularly powerful speech tools. As such, the Supreme Court has decided that symbolic expression or symbolic speech is protected speech (Tedford & Herbeck 306). However, it does not get the same degree of protection as verbal speech (Tedford & Herbeck 308). For instance, passive nonverbal expression (wearing some sort of garment as a form of protest) has more protection than nonverbal conduct, like burning a government document (Tedford & Herbeck 308). There is a four part test the Court applies to determine whether or not the expression deserves protection (Tedford & Herbeck 307).

Originally there were specific guidelines that the expression had to meet. The person engaging in the symbolic expression/action had to intend to convey a message and there must have been likely that the audience would understand the message (Tedford & Herbeck 306-307). Later the Court broadened the definition of symbolic expression. The Court moved away from the idea that symbolic expression had to have a specific message generally understood by the audience to holding that a “narrow, succinctly articulable message is not a condition of constitutional expression” (Tedford & Herbeck 313). It eliminates the idea that there needs to be an obvious message behind symbolic expression. Thus, a parade is a form of symbolic expression protected by the first amendment as is an abstract painting.

It is important for the first amendment to protect symbolic speech and expression for a variety of reasons. One reason is simply, that this kind of expression has the potential to be much more powerful and resonant than verbal expression (a picture is worth a thousand words, actions speak louder than words etc.). Another reason is that not everyone can speak the same language, and not everyone can read. By protecting symbolic expression it provides people with a means of sending messages to a larger and more inclusive set of people. Initially, I thought that limiting and reducing protection of this kind of expression seemed wrong. It seemed that this kind of expression deserved full protection under the first amendment. Then I realized the kinds of problems that may lead to. For instance, people may try to justify harmful and otherwise illegal action as symbolic expression. What immediately came to mind was Michael Fredrick Griffin, a man who killed an abortion doctor in 1993. If all symbolic expression (both passive nonverbal expression and nonverbal conduct) were protected under the first amendment criminals like Griffin may be able to defend their actions as protected expression—he killed the abortion doctor as a way to express his hatred of and opposition to abortion. This is a pretty drastic example, and even if symbolic expression was fully protected under the first amendment, I doubt the Court would consider murder as a kind of symbolic expression, but it is something that helped me realize why symbolic expression is not fully protected by the first amendment. This also illustrates why passive symbolic expression has more protection that symbolic conduct.

Sources:

Tedford, Thomas L., and Dale A. Herbeck. Freedom of speech in the United States. 8th ed., State      College, PA, Strata Publishing, Inc., 2017.