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Free Speech
The First Amendment states, in relevant part, that: “Congress shall make no
law...abridging freedom of speech.”
Freedom of Speech is one of the most important of our freedoms
guaranteed under the Bill of Rights. But, what does speech really mean?
Does it mean specifically what we say out of our mouths? Does it also
include writing, or printed words? This has been an ongoing subject of
questions by the legal minds in the country. The United States Supreme
Court often has been called upon to decide what “speech” means. There are
actually two types of “speech” as covered by the Constitution: direct speech
and symbolic speech. Symbolic speech is probably the most important and
misunderstood of our rights under the First Amendment.
Quite simply, it means that not just actual words but also certain
actions can be defined as “speech” and are protected by the Constitution.
Freedom of speech, oddly enough, is also the right not to “speak” including
symbolically not doing something. West Virginia Board of Education v.
Barnette, 319 U.S. 624 (1943). It also includes: the right to use certain
offense words. Cohen v. California, 403 U.S. 15 (1971), the right to contribute
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money to political campaigns in some instances Buckley v. Valeo, 424 U.S. 1
(1976), to advertise commercial products, and to engage in “symbolic” speech
Tinker v. Des Moines, 393 U.S. 503 (1969). In America, we're free to express
all sorts of opinions, good, bad and everything in between.
One example of “symbolic” speech is demonstrated by the case of Tinker
v. Des Moines, 393 U.S. (1969). In this situation, a brother and sister (the
Tinkers) wore black arm-bands to their high school in Des Moines, Iowa, as a
form of protest to the war in Vietnam. They were told to take the arm-bands
off or they would not be allowed to attend school. The case went all the way
to the U.S. Supreme Court which ruled in favor of the Tinkers. The Court
said this was an acceptable and protected form of speech under the
Constitution. Another example of symbolic speech is the right not to engage
in certain behaviors. West Virginia State Board of Education v Barnette, 319
U.S. 624 (1943) was a decision by the Supreme Court that said public school
students do not have to salute the American flag, nor do they have to say the
Pledge of Allegiance. This case was primarily brought by a religious group,
the Jehovah’s Witnesses, that believe that by doing those symbolic gestures,
it was taking away from their religious beliefs. This case was a victory for
that group, but religious principles were not mentioned in the Court’s
opinion. The real issue was whether we, as citizens, should be forced into
some type of symbolic behaviors, and the answer is NO. We have the right,
under the First Amendment, not to engage in such arbitrary gestures.
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(W.V.Bd of Ed. V Barnette).
The symbolic speech gesture of flag burning was taken up in the case of
United States v Eichman, 496 U.S. 310 (1990). Several cases of this type
were pondered by the Court because of various state laws forbidding the
burning of state or U.S. flags. The Court held that neither a state nor the
federal government can prosecute someone for burning a flag. To make it
illegal would be to violate the person’s free speech. Flag burning, the
Supreme Court said, is “expressive conduct” and therefore is fully protected
as a form of speech. The Court went on to say that the “mere destruction or
disfigurement” of such a symbol does not really affect the symbol itself, and
so even if the action is despised or hated, people have the right to express
their opinion by this type of symbolic speech. (U.S. v Eichman).
Although the people enjoy the above freedoms, there are some symbolic
gestures that are not allowed under the First Amendment freedom of speech
clause. Freedom of speech does not include the right to make or distribute
obscene materials, for instance. Roth v. United States, 354 U.S. 476 (1957)
was a decision of the Court which defined obscenity as it was applied to the
laws. It said that obscenity, in and of itself, was not protected by the First
Amendment and therefore, was not part of our “free speech” guarantee. But,
the decision of the Court also strictly limited what was to be considered
obscene, so as not to step over the “line” followed by the First Amendment.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) concerned a case
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of a high school newspaper. The Court said that the schools were able to
restrict what was put into school newspapers to a certain degree.
Of all the freedoms guaranteed through the Constitution and the Bill of
Rights, freedom of speech, especially symbolic speech, is one of our most
important. In people’s everyday lives they demonstrate speech by wearing tshirts with political sayings, displaying flag stickers on their bumpers,
protesting things, endorsing things, and much more. It is not always
obvious, but always present, that we have these rights through our Freedom
of Speech.