When actions speak like words

SUN JOURNAL

Rulings: Over the years, cases reaching the U.S. Supreme Court have extended the First Amendment guarantee of free speech to other forms of expression.

April 02, 2000|By Lyle Denniston

Congress refused last week to amend the Constitution to allow the banning of flag-burning. That was an attempt to amend the First Amendment guarantee of free speech. How do such things as flag-burning, campaign finance, nude dancing, organizing a parade and trying to keep homosexuals out of the Boy Scouts get to be free-speech issues? Lyle Denniston, of The Sun's Washington Bureau, provides some answers.

What does the free-speech clause say?

The entire clause reads: "Congress shall make no law abridging the freedom of speech."

That just mentions "speech." If those who wrote it meant to create a right to speak freely, why is anything else protected?

The Supreme Court made it happen with its decisions. The word "speech" has been interpreted to include not only writing and speaking, but also "symbolic" speech, as well as a right to associate with the people or causes one prefers, and a right not to speak at all.

What is "symbolic" speech?

That is conduct, or behavior, that one engages in mainly because it is intended to, or in practice does, send a message. A person can engage in "symbolic" speech and say nothing; what counts is that there is a message coming out of the conduct.

What are some examples?

Burning the flag, the court has said, is a way of communicating discontent with the government or official policy -- as in flag-burning to protest the Vietnam War. The message is there, even if the flag-burner says nothing. It was to try to overrule that result that Congress put forth the proposed constitutional amendment that failed in the Senate.

Burning a draft card is another example: It can express an anti-war or anti-draft sentiment.

Nude dancing is another: One does it to communicate an erotic message.

Is giving money to a politician's campaign a kind of symbolic speech, too?

Yes. The Supreme Court has said that giving money to candidates is like voting with one's wallet: It sends a political message.

It also has said that, when the candidate spends the money, that also is symbolic speech. In other words, "money talks."

How about refusing to salute the flag?

It could be a form of symbolic speech, if one did it to send a political message. But the Supreme Court has protected such refusals not as speech, but as a way to protect individuals whose religious beliefs prevent them from paying homage to symbols, images or icons. (The First Amendment also guarantees freedom of religion, but that is a whole different clause with a quite different history.)

Does all "symbolic" speech get the same amount of protection?

No. The court has given flag burning full protection, mainly because it is considered a form of political speech -- the kind that the First Amendment shields the most from government control or censorship. While nude dancing gets some First Amendment protection, the court has said it doesn't get much. Neither does draft-card burning.

The court also has said that giving money to a politician gets less protection than the candidate's spending of the funds does.

Some people find the distinctions a little too fine to make sense. And some of those people have been Supreme Court justices who dissented.

Does the amount of First Amendment protection determine how much government can control "symbolic" speech?

It certainly does. Just last week, the Supreme Court allowed cities to ban nude dancing -- so long as they do it in laws that ban all public nudity. The court years ago upheld a federal law against burning a draft card.

If some symbolic speech can be regulated by the government, does that mean the government could also regulate some forms of actual speech?

Yes. The classic example given by the court is that no one may falsely shout "Fire!" in a crowded theater and claim constitutional protection. If the harm done by using free speech is great enough, it can be regulated, or even banned. The court, as another example, allows all obscenity to be banned, even if it is in the form of speaking or writing.

You mentioned a "right to associate." What does that mean?

The court has ruled that the freedom of speech includes freedom to communicate, and that in turn includes a right to decide with whom one wants to communicate. Picking one's associates is a way of sharing views and sharing experiences.

An example of that?

Private clubs that closely restrict their membership can exclude people they don't like or simply don't want in. A gentlemen's poker club might be an example.

Well, then, how about the Boy Scouts?

Wait and see. That is the issue the Supreme Court is considering in weighing the Boy Scouts of America's refusal to admit homosexuals as members or as adult leaders. The Scouts claim that freedom of association is at issue. (They also say that their free-speech rights are involved, too, because they advocate the view that homosexuality is immoral.)

What about the Rotary Club or the Lions Club?

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