Eugene Volokh: The Founding Fathers agreed that the First Amendment protected 'symbolic expression.'
[ Mr. Volokh is professor of law at UCLA. This op-ed is adapted from "Symbolic Expression and the Original Meaning of the First Amendment," published in the April 2009 issue of the Georgetown Law Journal. ]
Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.
Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment to protect symbolic acts such as flag burning. As Sen. Chuck Grassley (R., Iowa) said in supporting the Vitter proposal, "if you read the debate in 1790 -- the First Amendment was not written to protect nonverbal speech . . . . [W]e want to make sure we get the Constitution back to its original intent before the Supreme Court screwed it up." Or, as Judge Robert Bork argued in his book "Slouching Towards Gomorrah," flag burning "is not speech," and the court shouldn't have held "that an amendment protecting only the freedom of 'speech' somehow protects conduct if it is 'expressive.'"
Yet the best historical evidence suggests Messrs. Bork and Grassley are mistaken. The Framers fully understood "freedom of speech, or of the press" to include symbolic expression as well as verbal expression.
The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.
Many cases and treatises, including Blackstone's "Commentaries" published in 1765 and often cited by the Framers' generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior....
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Congress is once again considering a constitutional amendment to ban the desecration of the American flag. The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.
Advocates for flag amendments argue that activist Supreme Court Justices have twisted the original meaning of the First Amendment to protect symbolic acts such as flag burning. As Sen. Chuck Grassley (R., Iowa) said in supporting the Vitter proposal, "if you read the debate in 1790 -- the First Amendment was not written to protect nonverbal speech . . . . [W]e want to make sure we get the Constitution back to its original intent before the Supreme Court screwed it up." Or, as Judge Robert Bork argued in his book "Slouching Towards Gomorrah," flag burning "is not speech," and the court shouldn't have held "that an amendment protecting only the freedom of 'speech' somehow protects conduct if it is 'expressive.'"
Yet the best historical evidence suggests Messrs. Bork and Grassley are mistaken. The Framers fully understood "freedom of speech, or of the press" to include symbolic expression as well as verbal expression.
The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.
Many cases and treatises, including Blackstone's "Commentaries" published in 1765 and often cited by the Framers' generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior....