Contributor, The Volokh Conspiracy
An anti-Trump protest on the campus of American University in Northwest Washington escalated into shouting matches when protesting students burned a small American flag. (The Washington Post)

Contrary to President-elect Donald Trump’s tweet, the Supreme Court held that flag-burning is constitutionally protected symbolic expression (in an opinion joined by Justice Antonin Scalia), and the vote was 5-4 when the matter arose in 1989 and 1990; I suspect it would be much more strongly in favor of protection today. I also don’t think that the conservative justices will be swayed by the argument that “freedom of speech” means just speech, and not symbolism; as I discussed in “Symbolic Expression and the Original Meaning of the First Amendment,” the Framing-era legal system viewed symbolic expression as tantamount to verbal expression — here’s an excerpt from that article:

The First Amendment protects “speech” and “press,” not “expression”: so some argue, condemning the Court’s symbolic expression cases. Judge Robert Bork writes that “burning a flag is not speech and should not fall under First Amendment protection.” Senators Dianne Feinstein and Orrin Hatch agree, as do many journalists, activists, and commentators. Others similarly reason that the First Amendment doesn’t protect the wearing of symbolic armbands or Ku Klux Klan regalia, the symbolic refusal to salute a flag, or the burning of a cross. Judge Richard Posner concludes that “[n]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech,” partly because “[b]urning a flag is not even ‘speech’ in a literal sense.”

The Supreme Court has disagreed with the Bork/Hatch/Feinstein position. “[I]nherently expressive” or “conventionally expressive” symbolic expression, the Court has concluded, is basically functionally identical to expression through words and should thus be treated the same: the two convey messages through much the same mental mechanism, with much the same effects and for much the same speaker purposes. But are the Court’s critics right, at least if one focuses on the text and original meaning of the First Amendment? Is the Court’s doctrine here vulnerable to reversal given the Court’s growing turn to original meaning analysis?

Even conservatives on the Court and elsewhere have usually shown little interest in revisiting the Court’s general free speech/free press precedents, which now consist of hundreds of cases, or in adopting some Framers’ attitudes towards seditious libel or even offensive public speech generally. But returning the definition of “speech” and “press” to its original meaning might be feasible, and the call to return to this definition deserves to be considered.

This Essay argues that the Court has had it right all along, and that the Court’s critics are mistaken on originalist grounds. The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning:

1. Late-1700s and early-1800s courts treated symbolic expression and verbal expression as functionally equivalent when it came to speech restrictions, such as libel law, obscenity law, and blasphemy law. Symbolic expression, for instance, could be just as libelous as verbal expression.

2. This logic and tradition of equivalence extended to speech protections — a term I will use as shorthand for “free speech or free press protections” — as well as to speech restrictions. Paintings, liberty poles, and other symbolic expression (even outside the “press”) appeared to be no less and no more protected than spoken and printed words. In fact, the first American court decision striking down a government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.

3. And this equivalence of symbolic and verbal expression fits well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that “the freedom of speech, or of the press” was tantamount to Madison’s original draft of the clause: the “right to speak, to write, or to publish.” And the term “to publish” included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.

The treatment of symbolic expression as equivalent with verbal expression makes historical sense as well as logical sense, because Framing-era English and American political culture was rich with symbolic expression, used interchangeably with words. A leading English holiday, Guy Fawkes’ Day (called Pope Day in the colonies), revolved around processions and burning effigies. In the first major protest against the Stamp Act, colonists placed on a “Liberty Tree” (in that case, a large elm) various effigies, including a “devil . . . peep[ing] out of a boot — a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act”; “[t]he effigies were then paraded around town, beheaded, and burned.” John Jay, coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, reportedly “wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold” — a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors.

English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is actually toasting the “King over the Water,” which is to say the Pretender, who lived in exile in France. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: forty-five toasts — representing Issue 45 of Wilkes’ North Briton, which got him prosecuted for seditious libel and made him a star — were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was “eaten from plates marked ‘No. 45’”; the Liberty Tree in Boston had its branches “thinned out so as to number forty-five.” Literal speech (the words of the toasts) was freely mixed with symbolic expression.

Likewise, 1790s Americans wore colored cockades in their hats to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung to mock the other side’s cockades. Some conducted mock funerals for the other side’s cockades (see the picture on p. 1062 of the article). Others raised liberty poles, or burned “Liberty or Death” flags stripped from their adversaries’ liberty poles. Yet others planned an elaborate pantomime criticizing their Congressman, including the burning of a British flag, preceded by displays of the French and American flags crowned with liberty caps, the British flag flying upside down, and a gallows.

Colonists conducted funeral processions for liberty to protest the Stamp Act. After the Revolution, Americans burned copies of the Sedition Act and other federal laws, as well as copies of opponents’ publications that they saw as libelous (echoing the English legal practice of having libels be burned by the hangman). It is understandable that a culture that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression.

Likewise, it makes sense that the Supreme Court’s protection of symbolic expression dates back to the very first Supreme Court decision striking down any government action on free speech or free press grounds. The Court in that 1931 case casually assumed that symbolic expression was as protected as verbal expression, and treated the display of a red flag as legally tantamount to antigovernment speech. But its assumption was consistent with the First Amendment’s original meaning: the equivalence of symbolic expression and verbal expression has been part of American law since the Framing era.

Of course, the court’s flag-burning decisions could be overturned by a constitutional amendment; for one reason why I think that would be a very bad idea — and would jeopardize a great deal more expression than just flag-burning — see here.