What is Speech?
by Franklyn S. Haiman, Ph.D.
Whether we regard the press as simply the written counterpart of speech, or as a separate institution which employs both voice and print to perform a "Fourth Estate" function, there is still the problem of determining the range of phenomena that are encompassed under the freedom of speech and press provision of the First Amendment. Is it only words that are protected? Even then, are certain kinds of verbalization excluded? Beyond language, do some forms of nonverbal communication warrant inclusion?
Clearly it has been the predominant assumption of our legal system that, unless there is good cause to treat them otherwise, words are the very thing safeguarded by the First Amendment, whether those words be spoken, sung, broadcast, or printed on a sign, button, handbill, newspaper, magazine, or even the back of a jacket. It was this latter category of message conveyance that was at issue in a 1971 landmark decision of the U.S. Supreme Court, Cohen v. California, involving a young man who had walked through a corridor of the Los Angeles County Courthouse wearing a jacket bearing the words "Fuck the Draft." Despite a terse, offbeat, and inexplicable dissenting view by Justices Harry Blackmun, Hugo Black, and Chief Justice Warren Burger describing "Cohen's absurd and immature antic" as being "mainly conduct and little speech," the Court majority, in an opinion written by the impeccably conservative Justice John Marshall Harlan, said, "The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech.'" 1
More substantial than the Blackmun-Burger-Black objection that expression
such as Cohen's is "mainly conduct and little speech" is a school of
thought represented by Walter Berns. He argues that our Founding Fathers were,
above all, rationalists, who intended by the First Amendment to protect serious
and "decent" discourse about public affairs and not the kind of
"vulgar" emoting that characterized so much of the countercultural
protest of the 1960s which Cohen's jacket so vividly exemplified. It is this
line of thought which has led Berns and others to deplore the substitution of
the phrase "freedom of expression" for "freedom of speech,"
because he believes that the more "commodious" word connotes greater
approval of incivility in public discussion than does the more traditional term,
"speech." 2
__________________________
Source: Haiman, Franklyn S. "What is Speech?" in Speech and Law in a Free Society. Chicago: U of Chicago P, 1981, 16-40. Permission from Dr. Haiman granted on February 2, 1999, to distribute this chapter electronically to small classes for classroom use only.
The Supreme Court, speaking again through Justice Harlan in Cohen v. California, has taken a more understanding and expansive view of the communication process--a view, it is to be hoped, that will continue to command the support of a majority of the Court:
. . . we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution while solicitous of the cognitive content of individual speech, has little or no regard for the emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. 3
Or, as I have elsewhere replied to those who insist that Cohen could and should have said something more civil, like "Resist the Draft," which conveys essentially the same message, "Clearly something is lost in the translation." 4
Somewhat akin to the rationalist view of the First Amendment is a much more sweeping doctrine expounded by Alexander Meiklejohn, which rests on the premise that a small word, "the," in the phrase, "the freedom of speech," is of large significance. Meiklejohn, who was this country's most recognized modern philosopher of the First Amendment, held that there are two different kinds of speech protected by two separate provisions of the Bill of Rights. 5 The freedom of speech, guaranteed by the First Amendment, refers only to that communication which has to do with the process of self-government. Because the citizens in a democracy are the governors, they must have the right to unrestrained freedom of discussion concerning public affairs so that the wisest societal decisions can be made. This, according to Meiklejohn, is the kind of speech, and the only kind of speech, that was contemplated by the absolute terms of the First Amendment. Private speech, on the other hand, involving individual expression unrelated to the political process, is given protection by the word "liberty" in the Fifth Amendment's provision--"No person shall . . . be deprived of life, liberty, or property, without due process of law." In Meiklejohn's view, this less vital kind of communication, unlike the freedom of speech, may be abridged so long as the restraints are imposed by due process of law. 6
One of Meiklejohn's students, Zechariah Chafee, who himself became the nation's leading legal authority of his time on freedom of speech, took strong exception to the Meiklejohnian analysis. He charged that the bifurcation of speech which his old professor claimed to have discovered in the Bill of Rights was a figment of his imagination. 7 In the first place, argued Chafee, it is impossible to draw a defensible line between so called private and public speech. Are the works of a poet or playwright private expression, or do they have an influence on the body politic? Furthermore, Chafee insisted, the absolute freedom accorded to political speech by the Meiklejohn thesis is far broader than ever has been, or can ever realistically be, accepted by our legal system, and the due process standard for curbing private speech provides far less shelter than that which we have properly come to expect. Chafee concluded, as have our courts, that we should not create an arbitrary hierarchy of values for various categories of speech, but that all expression must look to the First Amendment for whatever protection it may or may not obtain.
One of the motivations which apparently led Meiklejohn to seek the segregation of political from private speech was his dismay over the fact that, when the Supreme Court in 1925 made the First Amendment applicable to the states, it chose the "due process clause" rather than the "privileges and immunities clause" of the Fourteenth Amendment as the means by which to do it. The relevant sections of the Fourteenth Amendment read as follows: "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."
Meiklejohn quite logically noted that the qualified nature of the rights protected from the exercise of state power by the due process clause of the Fourteenth Amendment is identical to that provided against the federal government by the Fifth Amendment. In contrast, he argued that the privileges and immunities clause of the Fourteenth Amendment is more parallel in its absolute language to that of the First Amendment and that it should have been the vehicle used by the Court to make the freedom of speech and press applicable to the states. By giving away private speech as properly within the domain of the due process clauses of the Fifth and Fourteenth Amendments, Meiklejohn hoped to rescue his more cherished political communication from being "swallowed up" in that same due process machinery. 8
That hope appears to have been in vain, for not only has the Supreme Court declined to recognize a categorical distinction between political and private speech, it has also persistently invoked the due process clause, and not the privileges and immunities clause, of the Fourteenth Amendment as its mechanism for applying the First Amendment to the states. This pattern of decision making ultimately stirred a lone protest in 1974 from Justice William 0. Douglas, but his view, like that of Meiklejohn, is likely to remain a voice in the wilderness:
Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be "implicit in the concept of ordered liberty." But the Court frequently has rested state free speech and free press decisions on the Fourteenth Amendment generally rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of "privileges and immunities" of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgement than the freedoms of speech and of the press. 9
Words That Are Like Acts
Although Zechariah Chafee opposed the notion that speech may be divided into public and private categories as suggested by Meiklejohn, he was himself an influential figure in bringing about the acceptance by our legal system of another kind of categorization--that between words which convey ideas and those which are more like acts and may be punished as such. Chafee described the distinction as follows:
. . . the normal criminal law . . . is directed primarily against actual injuries. Such injuries usually are committed by acts, but the law also punishes a few classes of words like obscenity, profanity and gross libels upon individuals, because the very utterance of such words is considered to inflict a present injury upon listeners, readers, or those defamed, or else to render highly probable an immediate breach of the peace. This is a very different matter from punishing words because they express ideas which are thought to cause a future danger to the State.... [P]rofanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young, and the peace of mind of those who hear and see. Words of this type offer little opportunity for the usual process of counter-argument. The harm is done as soon as they are communicated, or is liable to follow almost immediately in the form of retaliatory violence. The only sound explanation of the punishment of obscenity and profanity is that the words are criminal, not because of the ideas they communicate, but like acts because of their immediate consequences to the five senses. The man who swears in a street car is as much of a nuisance as the man who smokes there. 10
In 1942 the U.S. Supreme Court agreed with this view. In upholding the conviction of a Jehovah's Witness who had called a police officer a "damned Fascist" and "a God damned racketeer," the Court said:
. . . it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 11
The Supreme Court then proceeded to credit Chafee with the rationale for this position: "It has been well observed that such utterances are no essential part of any expression of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interests in order and morality." 12 . . .
The major difficulty with this distinction is its failure to appreciate the nature of symbols and of communication. Words and pictures which are claimed to do injury to others are not, as Chafee asserted, "like acts because of their immediate consequences to the five senses." "The man who swears in a street car," to continue with the Chafee example, "is as much of a nuisance as the man who smokes there," only if the other people on that street car understand what he says (which they would not if he spoke in an unfamiliar foreign tongue) and if they find what he says offensive (which they might or might not do, depending on their own attitudes and habits regarding language usage). Unlike smoke, which invades the lungs of others regardless of what goes through their minds, or the loud playing of a transistor radio, whose noise bombards the ears of others whether the language of the broadcast is welcome or offensive, words and pictures per se do not do injury. It is the meaning and values with which they are endowed by those who see or hear them that may cause pleasure or pain and that is a symbolic transaction mediated through consciousness. The childhood maxim, "Sticks and stones may break my bones, but names will never hurt me," captures this understanding.
This is not necessarily to argue that, within a given cultural context, certain symbolic behavior may not almost universally be regarded as undesirable, or that symbolic acts should never be restrained or punished. Those are questions we will come to later. It is only being urged that if we choose to restrain or punish speech we should not do so because we have confused it with injurious "acts" but because we have concluded that some kinds of symbolic, First Amendment behavior, in some circumstances justifiably may be curbed.
It is interesting to note in this connection that the Chafee passage which was quoted with such approval by the Supreme Court described the utterances in question as being "no essential part of any expression of ideas" and of "slight social value as a step to truth" (italics mine). Those qualifying adjectives would seem to suggest some recognition that even so-called speech-acts may be part of the expression of ideas, though allegedly not an "essential" part, and that they may indeed have social value, albeit "slight." To conclude, as many have done,13 including the U.S. Supreme Court, that there can be such a thing as speech which is devoid of ideational content is therefore not only to misunderstand the consciousness-mediated nature of symbolic transactions but to ignore the qualifying phrases in the original Chafee statement. Much as one might believe that the Jehovah's Witness who called a policeman a "damned Fascist" and "a God damned racketeer" ought to have been punished, it can hardly be denied that his utterances conveyed a clear and unmistakable idea.
One other respect in which the Supreme Court ran farther with Chafee's ball than he might in retrospect have wished (although he must take responsibility for suggesting the language to them) is the notion, expressed in the 1942 Chaplinsky decision, that some words "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (italics mine). We have already noted that words, by their very utterance, can do nothing of the sort, and that it is only as the result of a mental judgment made by others about those words in a particular context that injury may be felt or that reactive violence may occur. Even the Supreme Court, in this very same case, unconsciously admitted as much when it accepted the New Hampshire Supreme Court's definition of "fighting words": "The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile" (italics mine).
The reason I suggest that Chafee might not have been happy about the doors that the Chaplinsky decision opened is the following passage he wrote shortly after the famous section quoted by the Supreme Court:
This breach of peace theory is liable to abuse when applied against unpopular expressions and practices. It makes a man criminal simply because his neighbors have no self-control and cannot refrain from violence. The reductio ad absurdum of this theory was the imprisonment of Joseph Palmer . . . not because he was a communist, but because he persisted in wearing such a long beard that people kept mobbing him, until law and order were maintained by shutting him up.... Thus all these crimes of injurious words must be kept within very narrow limits if they are not to give excessive opportunities for outlawing heterodox ideas.14
It is unfortunate that Chafee's own cultural blinders did not let him see that swearing on a streetcar or displaying "indecent" pictures can be viewed as benignly as the wearing of a long beard.
Making a distinction between speech and speech-acts on the basis of whether or not an utterance conveys essential or socially valuable ideas is not the only differentiation that has been attempted. Thomas Emerson has built an entire theory of the First Amendment on a distinction between "expression" and "action" which places some "speech" on both sides of that dividing line.15 Like Meiklejohn, Emerson looked with dismay upon the fact that much expression in our society was not being given the absolute protection of the First Amendment that it merited, and, like Meiklejohn, he set about developing a conceptual scheme whereby certain kinds of speech would be given "full protection" and others allowed to be subject to restraint or punishment. The essence of his system is the drawing of an absolute protective boundary around behavior, whether verbal or nonverbal, which he defines as "expression," as distinguished from the unprotected realm of "action," which may include some "verbal acts" as well as nonverbal behaviors.
For Emerson free expression includes the right to form and hold beliefs and opinions on any subject, and to communicate ideas, opinions, and information through any medium--in speech, writing, music, art, or in other ways. To some extent it involves the right to remain silent. From the obverse side it includes the right to hear the views of others and to listen to their version of the facts. It encompasses the right to inquire and, to a degree, the right of access to information. As a necessary corollary, it embraces the right to assemble and to form associations, that is, to combine with others in joint expression.16
Beyond this broad definition of expression, Emerson offers no generic distinction between expression and action but elaborates the difference by specific illustrations. The law of treason provides his first example. Here he notes that our Constitution excludes the possibility of conviction for the crime of treason on account of mere "expression" by the requirement of an "overt act." Says Emerson, "Under the treason provision . . . the test is not whether the expression has a tendency to aid and comfort the enemy, or presents a clear and present danger of doing so.... Rather, the test is whether the conduct in question constitutes expression or action. In most of the decided cases the behavior alleged to be treasonous has clearly come within the action category." 17
He then goes on to discuss some World War II cases involving individuals who were found guilty of treason for making radio broadcasts for the enemy as part of a program of psychological warfare directed primarily to American troops. A decision of the U.S. Court of Appeals for the District of Columbia in one of those cases said of treason: "While the crime is not committed by mere expression of opinion or criticism, words spoken as part of a program of propaganda warfare, in the course of employment by the enemy in its conduct of war against the United States ... may be an integral part of the crime.... The use of speech to this end . . . made acts of words." 18 Emerson comments: "The court seems right on construing the conduct in the case as constituting 'action' rather than 'expression.' The broadcaster was part of the enemy war apparatus and in effect engaged in military activities." 19
A second example discussed by Emerson is the category of "fighting words," with Emerson almost uncritically joining the Chafee-Supreme Court camp. Like Chafee, he believes that personal insults, delivered face to face, "can be considered the equivalent of knocking a chip off the shoulder-the traditional symbolic act that puts the parties in the role of physical combatants. It is, in short, the beginning of action." 20 He does, however, demur partially from the traditional "fighting words" rationale when he says that such utterances "fall outside the protection of the First Amendment ... not, as the Supreme Court argued in Chaplinsky, because fighting words have 'slight social value,' but rather because they are 'verbal acts.'" 21
"The same basic rules apply to heckling the speaker," Emerson continues, with a third example. "Up to a point heckling or other interruption of the speaker may be a part of the dialogue. But conduct that obstructs or seriously impedes the utterance of another, even though verbal in form, cannot be classified as expression. Rather it is the equivalent of sheer noise. It has the same effect, in preventing or disrupting communication, as acts of physical force. Consequently, it must be deemed action and is not covered by the First Amendment." 22
A final example discussed by Emerson is the use of speech to promote a boycott. He reports a 1911 decision of the U.S. Supreme Court, in case involving a boycott of the Bucks Stove and Range Company by the American Federation of Labor, where the union's periodical named Bucks on its "Unfair" and "We don't patronize" lists. The Court's opinion said, "In the case of an unlawful conspiracy, the agreement to act in concert when the signal is published, gives the words 'Unfair,' 'We don't patronize,' or similar expressions, a force not adhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under the circumstances they become what have been called 'verbal acts.'" 23
Although Emerson does not say explicitly whether he agrees with the categorization of this particular communication as a "verbal act," his general discussion of boycotts and picketing indicates that in these areas he would draw the line between "expression" and "action," as the Court seemed to do in the Bucks Stove and Range case, on the basis of whether the speech in question is persuasive or coercive:
Labor picketing normally has a special kind of economic impact, derived from its institutional setting. An employer who is picketed is usually sealed off from many economic contacts by the tradition that union labor will not cross the picket line. This form of pressure is applied by closely knit, powerful organizations.... A labor picket line is thus not so much a rational appeal to persuasion as a signal for the application of immediate and enormous economic leverage.... As such it must, under ordinary circumstances, be classified as action, rather than expression.
Most non-labor picketing is of a substantially different character. It is usually undertaken by relatively small groups, with relatively limited resources.... Such groups are not highly organized around a major economic interest, but ordinarily are more loosely put together, with a narrower claim on the loyalty of their members. l hey do not have at their command the apparatus for applying economic pressures that the labor organizations do.... Picketing under such circumstances is a call to reason, not the application of economic coercion, and as such must be classified as expression.24
It is perhaps evident to the reader by now, as it is to me, that Emerson's classification scheme raises more questions than it answers. If granting full protection of the First Amendment were to require that our courts define expression in every instance as Emerson might do, freedom of speech would rest on a most uncertain foundation. Let us review his examples with a critical eye.
What is it that allegedly has "made acts of words" in these four illustrations? In the first case it is because the speaker was aiding the war effort of an enemy power. In the second it is because the words spoken might provoke a fight. In the third example, of interruptive heckling, words become acts because of the noise they make. In the last instance it is the economic power that stands behind the utterances. Thus, in all but the third illustration, it is the context in which the speech occurs which is said to convert the words into acts. The third case is the only one in which it can be argued reasonably that the words themselves have become acts, and even then it is not really the words per se but the noise that they generate which interferes with the meeting. The same effect would occur if the hecklers screamed, moaned, whistled, or used a siren.
The point of all this is that Emerson has identified certain contexts within which he believes that speech may properly be punished, and he labels that speech "action" rather than "expression" because he does not want "expression" ever to be subject to restraints. But calling words "action" does not change their symbolic nature. Rather it confuses matters by attempting to make certain contextual considerations which may justify restrictions appear to be inherent to the speech itself. So long as someone with Emerson's deep concern for freedom of expression is making the judgments as to what kind of contexts warrant the reclassification of speech as action, no harm is likely to be done to the scope of First Amendment protections. But his system is open for anyone to call almost any symbolic event "action" because the context in which that communication occurs is viewed with disfavor. Any meaningful distinction between "expression" and "action" could thus become eroded, and categories of disliked speech that are now protected by the First Amendment because they are so simply and clearly symbolic in nature might find themselves stripped of that protection.
Freedom of expression is likely to have firmer and broader support from the
First Amendment if less rubbery definitions of speech and action are employed.
We should insist that the only difference between speech and action is that
between symbolic and nonsymbolic behavior, regardless of the context in which
those behaviors take place. This does not mean that symbolic behavior can never
be restrained if the context in which it occurs justifies such limits. Rather,
if it is to be curbed, we will be clear that it is contextual considerations
that are responsible and not that words have, by the magic of redefinition, been
transformed into acts.
Acts That Are Like Words
If we accept the premise that words can never justifiably be viewed as functioning like acts, does it then follow that acts can never be viewed as functioning like words? I think not. On the contrary, it is beyond question that certain kinds of non-linguistic behavior perform precisely the same function as do words--the communication of ideas and feelings to other people.
Although it is only in recent times that nonverbal communication has become the subject of careful scholarly analysis,25 symbolic activity other than by the use of words has been known to mankind through all of recorded history. From the cave drawings of the primitives to the rain dances of aboriginal tribes, from the march of Coxey's Army of the unemployed to Washington, D.C., in 1894 to the wearing of black armbands in protest against the Vietnam War in 1965, people have expressed some of their deepest feelings and made known many of their most urgent needs through media other than language. Indeed, it is surprising that it has taken so long for lawyers and judges to recognize the greater accuracy in substituting for the word "speech" in the First Amendment more contemporary terms like "expression" or "communication." 26
The problem in dealing with nonverbal communication from a legal perspective lies not in the question of whether the First Amendment applies to such behavior, but when. Clearly a march or a silent vigil, either in honor of the war dead or in anger against racial discrimination, is a symbolic event entitled to First Amendment protection, but what about a lunch counter sit-in or lying down in front of a troop train? No one would question that a lone picketer, walking up and down on the sidewalk in front of the White House, is engaged in the exercise of freedom of speech, but what about a union picket line that effectively seals off entry to a store or factory? The U.S. Supreme Court has had little trouble recognizing a black armband 27 or the refusal to salute an American flag 28 as First Amendment behavior, but it has had a great deal more difficulty extending the concept of speech to protect the public burning of a draft card 29 or alleged misuses and "desecrations" of the flag.30 Federal and state courts all over the country have been trying to figure out for several years whether wearing a beard or long hair to a public school or a public job is a constitutional right, and whether topless dancing in a night club or scenes of sexual intercourse in a movie are a part of our system of freedom of expression.
Some initial steps have been taken to establish guiding principles in this
area, but the results can hardly be described as definitive. As early as 1931,
in finding unconstitutional a California law prohibiting the display of red
flags as a "sign, symbol or emblem of opposition to organized
government," the U.S. Supreme Court implicitly acknowledged the involvement
of the First Amendment in flag-display behavior.31 By 1943, the Court was ready
to be quite explicit about the matter:
There is no doubt that, in connection with the pledges, the flag salute is a
form of utterance. Symbolism is a primitive but effective way of communicating
ideas. The use of an emblem or flag to symbolize some system, idea, institution,
or personalization, is a short cut from mind to mind.... Symbols of state often
convey political ideas just as religious symbols come to convey theological
ones.... A person gets from a symbol the meaning he puts into it, and what is
one man's comfort and inspiration is another's jest and scorn.32
When confronted, in 1968, with a case of public draft-card burning by David Paul O'Brien, in violation of an act of Congress prohibiting such behavior, the Supreme Court felt it necessary to enunciate some constitutional principles governing nonverbal communication. Acknowledging that the conduct in question was a form of protest against the Vietnam War, the Court was also faced with the fact that a physical document had been destroyed in defiance of Congress. The decision addressed itself to both ingredients of the act:
We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct. a sufficiently important government interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.... we think it is clear that a government regulation is sufficiently justified if it is within the constitutional power of government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.33
On the basis of these criteria, the Supreme Court found that the government's interest in preserving draft cards was unrelated to the suppression of free expression (despite the fact that congressional sponsors of the legislation in question were clearly motivated by their anger at this particular form of antiwar protest), and that the incidental restriction on First Amendment freedoms that might have been involved was no greater than necessary to further a legitimate state purpose.
This decision in U.S. v. O'Brien became the prevailing precedent governing other so-called symbolic speech (or nonverbal communication) cases that went to the courts
in the ensuing years. Since the Supreme Court had conceded the possibility that there could be instances of combined "speech" and "nonspeech" conduct which, unlike O'Brien's, might be entitled to First Amendment protection, analysts and critics immediately went to work attempting to define what those might be.
A thoughtful and provocative article appearing in the Columbia Law Review shortly after O'Brien, entitled "Symbolic Conduct," argued that the O'Brien decision had failed to meet its own standards. Instead of there being a "substantial governmental interest" in the prohibition of public draft-card burning, "The Court seemed satisfied with a finding of administrative convenience," said this essay.34 Without challenging the fundamental premise that there may indeed be substantial governmental interests that would outweigh one's right to freedom of expression, whether exercised by verbal or nonverbal means, the authors of the article proceeded to suggest their own criteria for determining when alleged symbolic conduct is entitled to First Amendment consideration. They argued, first, that the actor claiming First Amendment protection must have been "motivated only by the desire to communicate.... the intent requirement is consistent with the objectives underlying the First Amendment.... An actor who is unaware of the symbolic significance of his conduct may inadvertently contribute to the debate, but by punishing him we do not deter free media choice.... A man cannot feel his thoughts have been slighted unless he is conscious of his attempt to communicate."35
Second, "the conduct must be capable of being understood by others as communication."
If there is to be a doctrine of first amendment protection for symbolic conduct, its cornerstone must be the requirement that others can recognize the conduct as communication.... If it were enough to claim that the conduct was understood as communication by one or two good friends even though the actual audience was more extensive, the result would be to invite eccentric duets. Rather, it should not be enough simply to claim that the conduct is reasonably calculated to communicate to someone. Instead the conduct must be calculated to communicate to some substantial audience.36
A slightly different approach was taken by lawyers for the New York Civil
Liberties Union, in the immediate wake of O'Brien, when they were faced with
writing a brief for the Supreme Court in the appeal of Sidney Street, who had
been convicted of violating New York's flag desecration statute by burning his
American flag in protest against the shooting of civil rights marcher James
Meredith. Their method of dealing with the question as to how the First
Amendment might apply to nonverbal symbolic conduct was as follows:
Since all communication is basically symbolic, we must determine what form of symbolic traffic in ideas, that is, communication, may be suppressed in order to preserve the required degree of public order.... In attempting to answer that extraordinarily difficult question, it would be appropriate to investigate the following areas:
1. Did the Conduct in Question Have Secondary Effect Apart from the
Communication of Ideas?
2. Do the Secondary Effects of the Act of Communication Impinge Upon a
Substantial Government Interest?
3. Is the Governmental Regulation in Question neither Broader nor More Stringent
than Necessary to Protect the Substantial Government Interest?
Concluding that the answer to all of these questions in the Street case was "No," the Civil Liberties Union argued that his conduct was protected by the First Amendment.37
Just as Thomas Emerson, in his System of Freedom of Expression, has classified some words as "action," he has also classified some nonverbal conduct as "expression." His mode of analysis for determining what kinds of conduct fall into the "expression" category appears to borrow to some extent from the Columbia Law Review position, in part from the Civil Liberties Union arguments, and even from the rationale of the O'Brien opinion, although he rejects the results of that case. What he shares with both the O'Brien Court majority and the ACLU brief is the concept that "when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important government interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Emerson puts it in only a slightly different way:
To some extent expression and action are always mingled, most conduct includes elements of both.... The guiding principle must be to determine which element is predominant in the conduct under consideration. Is expression the major element and action only secondary? Or is the action the essence and the expression incidental? The answer, to a great extent, must be based on a common-sense reaction made in the light of the functions and operations of a system of freedom of expression.38
Proceeding further, Emerson invokes the Columbia Law Review analysis:
"Yet often there is something more to go on--some extrinsic points of
reference which provide useful guides. The conduct must, of course, be intended
as communication and capable of being understood by others as such." 39
He then adds this further criterion to supplement one's "common-sense reaction":
In order to determine whether the government control is directed against that element of the conduct which constitutes expression only it is sometimes helpful to consider what comparable forms of action, divorced from expression or the particular kind of expression involved, are normally subject to government control. In the political assassination case, for example, murder is usually the object of official sanction regardless of what is intended to be expressed by the murderer.40
Having established these guidelines, Emerson seems to find it quite easy to adjudicate particular cases. With respect to the burning of the draft card, for him "it seems quite clear that the predominant element in such conduct is expression (opposition to the draft) rather than action (destruction of a piece of cardboard). The registrant is not concerned with secret or inadvertent burning of his draft card, involving no communication with other persons." 41
Likewise, for the turning in of draft cards in protest against the Vietnam War, he says, "In making this gesture the quality of expression clearly prevails over the element of action. The conduct is hardly different from writing a letter of protest." 42
In contrast, Emerson finds:
Certain other forms of protest against the war effort more clearly consist of
conduct in which action predominates and which is therefore not protected by the
First Amendment. Mass physical obstruction of draft boards . . . obstruction of
troop movements by lying down in front of troop trains . . . pouring blood over
Selective Service files. To attempt to bring such forms of protest within the
expression category would rob the distinction between expression and action of
all meaning, and would make impossible any system of freedom of expression based
upon full protection of expression.43
One can agree with Emerson's determination that the public burning or turning
in of draft cards merit First Amendment protection whereas lying down in front
of troop trains or pouring blood on draft board files do not, and yet be
forgiven for wondering how one gets to those conclusions as unerringly as he
does using only the guidelines he has provided. In all of these illustrations,
the actors clearly intended to communicate a message to the public, and those
messages were undoubtedly well understood. Since they passed that test, how did
Emerson decide which element of their behavior, expression or action, was
"predominant" and which "only secondary"? Which was the
"essence" and which "incidental"? The only answer he has
given us is "common-sense."
Unfortunately, the common sense of Supreme Court justices more conservative than Emerson is likely to lead to very different results than he has envisioned for his system.
Without denigrating any of the useful insights discussed thus far, and indeed relying on some of them, I would propose a more exhaustive analysis for determining when First Amendment consideration and possible protection is appropriate to nonverbal conduct. It seems to me that the necessary beginning point is a recognition that all behavior communicates, or, to put it in the apt phrase of one group of communication theorists, "one cannot not communicate." 44 Everything that one does, every action that one takes or fails to take, "speaks" to anyone who is interested in looking for the message. This is not to suggest that all behavior consciously communicates, is intended as communication, or is perceived by others as sending a message. But once we accept the fact that all behavior is capable of being understood as communication, we will have a better appreciation of the complexities we face in distinguishing among various behaviors for First Amendment purposes, and we may also find a starting point for cutting through those complexities.
If we assume that all behavior communicates, we must also assume that the First Amendment does not reach and license such an infinite range of conduct. Thomas Jefferson surely had some important distinction in mind when he said, "It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." 45 But we have seen that his distinction cannot be drawn on the basis of verbal versus nonverbal conduct, for "principles" can be expressed by the latter as well as the former without "break[ing] out into overt acts against peace and good order." It is necessary to look elsewhere for the dividing line.
It will help our analysis if we recognize three broad categories of human behavior. The first category consists of conduct that is entirely symbolic--that is to say, it functions only to create meanings (ideas and feelings) inside of people.46 Usually those meanings are communicated from one person to others, but it is also possible to use symbols to stimulate ideas and feelings in oneself--for example, the cathartic curse when one hurts oneself, or the rubbing of a rabbit's foot to bring good luck.
Behavior that is entirely symbolic is ordinarily easy to identify because of the traditional symbols it usually employs--words, gestures, pictures, sculptures, effigies, flags, emblems. All of these are inherently and only symbolic; that is, they represent or stand for something else. They are not it; they are about it.47
Modern technology and culture have made it more difficult than in the past to recognize the difference between a symbol and what it represents. Motion pictures and television seem so real, and indeed are so much closer to a representation of reality than words or drawings, that one sometimes forgets that they are still pictures of something and are not the thing itself. Live stage shows used to be clearly recognizable as simulations of
real life. But some modern dramatic techniques which have jumped over the traditional barriers of aesthetic distance and have literally landed in the laps of the audience have sometimes fuzzed the line between the make-believe and the real. When an actor is shot with a blank bullet and bleeds ketchup we have no problem recognizing that the enactment is solely for the sake of audience reaction. But when a hero and heroine are locked in a prolonged passionate embrace we cannot be entirely sure that their performance is only for the benefit of the viewers. Just as an actual killing, in the course of a play, would cross the line from symbolism to reality, so lovemaking that is engaged in for its own sake rather than to create some effect upon its audience would cross that same divide.
The question as to whether a particular set of activities is theater (i.e., make-believe) or "real" cannot be answered by whether or not it occurs on a stage. A professional wrestling match may be the real thing or it may be, with all its grunts and groans, just a "show"--that is, a symbolic event designed only to create illusions of a real fight in the minds of the audience. A nightclub stripper "doing the bumps" is clearly engaged in symbolic activity, but when she brushes a bare breast against a customer sitting at a front table, for a brief moment she steps across the line into reality. Those antiwar protesters who burned Xerox copies of their draft cards rather than the real thing were also engaging in symbolic conduct, as was the man who aimed a toy gun at President Gerald Ford. This last illustration should serve as a reminder that we are not, at this point, discussing whether these behaviors should be protected by the freedom of speech clause of the First Amendment. That is a separate question to which we shall return. We are simply attempting here to clarify the difference between conduct that is exclusively symbolic and that which is not.
Perhaps the most difficult example of this problem is an actor who, in the course of portraying a role in a play, takes a bite of real food, sips a real alcoholic beverage, or smokes a real joint of marijuana. The actor's purpose, to create an illusion in the audience. might be achieved just as easily in the latter two instances without using real alcohol or marijuana, but it would be difficult to simulate eating without real food. Regardless of the purpose for which it is done, the ingestion of any substance into the body cannot be considered as solely a symbolic act.
A second broad category into which behavior may be classified is conduct in which people engage entirely or primarily for its own sake--that is, its function to carry out some human need or impulse irrespective of any possible effect upon an audience or witness. This would include everything from eating, sleeping, dressing, playing, working, making love, and fighting, to serious antisocial behavior like robbery, the destruction of property, and murder. To be sure, as we indicated at the outset, all of these behaviors also communicate a message to anyone who chooses to view them from that perspective (like the psychiatrist who says to the companion with whom he is walking down the street, after having been greeted with a "hello" from a passerby, "I wonder what he meant by that"). But any message that is communicated by behaviors
that are engaged in entirely or primarily for their own sake is only incidental. The actor does not intend the conduct as communication, and others, unless they are making a psychiatric analysis, do not evaluate it as such.
The third broad category of human behavior, and the one that is the most problematic for First Amendment purposes, consists of conduct that is not ordinarily intended or perceived as symbolic--that is, it is usually behavior that falls into our second category--but may be endowed by the actor, perceiver, or observer with meaning above and beyond the act itself. The behavior is made symbolic by the way in which it functions.
Almost any activity that is ordinarily engaged in for its own sake can be converted in this way into a "message to the world." The length or style of one's hair, or one's state of dress or undress, can be designed for personal pleasure and comfort, or they can advertise an attitude or a culture. One can sit at a lunch counter just to eat, or to make a point, or perhaps both. One can urinate, defecate, or spit in order to eliminate substances from the body, or one can perform any of those acts as a sign of anger and contempt for their target. One can refuse to pay taxes just to cheat the government, or because one does not wish to support government policies that are alien to one's point of view.
Ordinarily digging a grave is for the purpose of burying someone. But when Phillip Berrigan and two associates dug a grave in the front yard of Secretary of Defense Donald Rumsfeld's Chevy Chase home in September 1976 and mounted signs beside it reading "The Future of our Children" and "Life on Earth," they were trying to communicate a political message. Usually when a laundry line is strung across a back yard it is for the purpose of drying clothes. But when the Stover family of Rye, New York, put up a clothesline every year from 1956 to 1961 from their front porch to a tree beside the street, it was in protest against high city taxes.48 Most arson and murder spring from some private impulse and serve some private end. However, the burning of a school that is about to be desegregated or the assassination of a Martin Luther King, Jr., may be an attempt, tragically misguided as it is, to make a statement on a public matter.
Returning now to the question of the applicability of the First Amendment to
these three broad categories of human behavior, it seems self-evident that the
first category requires no different treatment than that which is accorded to
words. Insofar as behavior occurs that is entirely symbolic, although not
verbal, the presumption should be that it is protected "speech."
Exceptions to First Amendment protection should be allowed only where the
context in which the nonverbal communication occurs justifies restraints,
precisely as it might justify restraints on verbal communication under like
circumstances. Thus, just as pointing a toy gun from a crowd at the president of
the United States may, for many good reasons, be regarded as intolerable
symbolic
conduct, so verbal threats against the life of a president would be, and are in fact, similarly punishable.
It seems equally self-evident that the second category of human conduct--that which is engaged in primarily or entirely for its own sake regardless of the messages psychiatrists might read into it--entirely outside the realm of First Amendment consideration. It is simply irrelevant to the concerns of this book.
It is the third category that presents the most difficult cases. To dismiss this category, as we do the second one, on the grounds that conduct which is not ordinarily or inherently symbolic can never be given the protection of the First Amendment is to exclude many acts that belong within the realm of freedom of expression. What we need is some basis for discriminating between a political assassination, at one extreme, and, at the other extreme, a case like that of three Pawnee Indian seventh graders who were suspended from an Oklahoma public school for insisting on the right to wear their hair in long braids in accordance with the traditions of their culture. It is astonishing that the school's authority in this matter was upheld by the U.S. Court of Appeals for the Tenth Circuit and the U.S. Supreme Court declined to review that decision.49
What we find in this third category of sometimes-symbolic acts are not only assassinations and hair styles but a whole range of behaviors in between. At the most violent extreme, in addition to political murders, there are ideologically motivated bombings of buildings, hijackings of airplanes, arson, and the capture and holding of hostages. Less serious because remediable, but still violative of the rights of others, are the angry breaking of windows, the splashing of paint on a home, office, or public building, digging a grave or burning a cross on someone's front lawn, and spitting or urinating on another person.
Moving another step along the continuum we find actions that are not directly harmful to other persons but which may interfere with the functioning of society as a whole, such as refusing to pay one's taxes, blocking a troop train, or occupying the offices of the U.S. Bureau of Indian Affairs. Behavior within this range is usually described as civil disobedience.
Still further along, and closer to the hair-style end of the line, are
actions that are more of an inconvenience than they are a serious harm to
others. Included here would be parades that temporarily disrupt traffic and
create litter. Burning draft cards (which are replaceable), flying banners from
the Statue of Liberty, or dumping piles of manure (which are removable) on the
steps of city hall50 fall in this part of the spectrum. It should be noted here
that what is ordinarily a mere inconvenience could, under unusual conditions,
become a greater hazard. A major traffic disruption, for example, could cost the
life of someone who, in a critical emergency, was slowed down in getting to a
hospital.
Finally, at the opposite extreme from assassinations are behaviors whose only impact on others is on their psyches. Here would be included nonconforming hair styles, public nudity (e.g., streaking), public sex, or a laundry line in the front yard. All of these acts function much like purely symbolic behavior--that is, they affect only the feelings of other people. They differ from those described in our first broad category in that the vehicle of expression is not exclusively a symbolic tool and, in most instances, is not engaged in for communicative purposes.
Having described the wide range of actions that fall into our third category of sometimes-symbolic conduct, we can now attempt to distinguish among them for First Amendment purposes. What is it intuitively that tells us that murder, for whatever motives, does not merit First Amendment protection and that the hair style of an Indian child might? The clear and essential difference lies in whether the behavior does harm to others and, if so, to how serious a degree. It does not really matter whether, in Thomas Emerson's terms, the expression or symbolic element is "predominant' or "incidental," and we can be spared the necessity of making that kind of judgment. The significant question is whether the nonsymbolic element, whether predominant or secondary in intent or in effect, is sufficiently harmful to place the total conduct beyond any possible First Amendment consideration. To put it another way, going back to the Civil Liberties Union brief in Street v. New York, it does not matter whether the harmful ingredient is a "secondary effect apart from the communication of ideas," or whether the communication of ideas is a secondary effect of what is primarily a harmful act. So long as the nonsymbolic or "non-meaning effect" (to incorporate Professor Melville Nimmer's language)51 is sufficiently harmful, it does not make any difference whether that nonmeaning element is primary, secondary, the "essence," or "incidental."
By this standard it is easy to write off the assassination-bombing-kidnapping end of the third-category continuum as so obviously and seriously harmful that it would be ludicrous to think of extending First Amendment consideration to such behavior. It should be just as obvious that the behaviors at the opposite end of the continuum, where the only harm that is done may be to give offense to the moral or aesthetic sensibilities of others, are at least entitled to as much First Amendment consideration, if not protection, as purely symbolic first-category conduct which may also be perceived as offensive. It would simplify the freedom of speech problem posed by these kinds of behavior if our society were permissive enough to place all victimless conduct, such as public nudity, public sex, and neighborhood aesthetics, whether functioning as communication or not, outside the reach of the law. Then we would not have to worry whether it merits protection under the First Amendment when functioning symbolically. But until that day comes-if it ever does, or indeed if it ever should-we must continue to make a distinction among these acts on the basis of their symbolic or nonsymbolic uses. This, of course, creates a state of affairs in which the law is applied unequally to people with respect to certain behaviors, depending on whether or not it is decided that they are engaged in acts of communication. Such discriminatory treatment can be justified only on the grounds that when First Amendment values are implicated in a
situation our society is willing to strike a different balance among competing interests than we would otherwise be inclined to do.
This can be seen more clearly when we move toward the middle ranges of our continuum, where the behavior in question may have an impact on more than the feelings of other people. Thus, for the sake of freedom of speech, we are willing to accept some disruption and rerouting of traffic to make way for a march-even at the risk of blocking someone's most direct route to a hospital-when we would not be willing to do the same if only private purposes were to be served. We will step around people who are staging a nondisruptive sit-in protest in the hallway, lobby, or reception area of an administrative office building from which mere loiterers would be ejected. A burning-in-effigy might be allowed in a public place where fires are generally prohibited; and the noise of a political rally would not evoke the negative police response that might be made to a similarly loud and boisterous neighborhood party.
We weigh the interests differently, however, when actions occur that strike physically at other people and their property-like spitting on them, breaking their windows, or digging graves in their yards. Here the presently prevailing standards of our society and legal system view the behavior, correctly I believe, as sufficiently harmful to warrant restraint, regardless of any symbolic function it may perform. Similarly, one can agree with the generally accepted view that civil disobedience directed against valid social interests, like collecting taxes, or keeping open some channels for traffic to move through the streets and people to move to their workplaces, should be punishable regardless of any message being communicated.52 Significantly, most advocates of the philosophy of civil disobedience would acknowledge that punishment for such acts is expected and accepted and that their martyrdom may actually help them to make their point.
The closest questions arise with respect to actions that are not quite as intrusive on the rights of others or as harmful to the interests of society as those just mentioned but are more troublesome than marches, rallies, bonfires, or nondisruptive sit-ins. Illustrations would be piling manure on the steps of a city hall, blanketing an area with a massive littering of leaflets dropped from an airplane,53 or affixing posters on public buildings. The harm may not be terribly serious and can probably be rather quickly undone, but perhaps at considerable economic cost and social inconvenience. In such instances, if First Amendment considerations are present we might be more inclined than otherwise to mitigate the punishment--for example, by limiting it to reimbursement for the cost sustained.
It is only with respect to conduct that falls toward the minimally harmful or totally harmless end of the range of behavior that is sometimes symbolic and sometimes not that the questions raised by the Columbia Law Review and Professor Emerson regarding communicative intentions and perceptions need even be addressed, for it is only in this area that defining the act as communication rather than as behavior
engaged in for its own sake would make any difference in how it should be treated by the law. In dealing with this definitional question, Nimmer has wisely pointed out that a necessary prerequisite to such an inquiry is that the alleged communicator must make a First Amendment claim.54 For unless the one who has acted asserts that the behavior was communicative, there is no good reason to believe that there was anything symbolic about it.
I do not believe this should mean, as the Columbia Law Review and Emerson have proposed, that in order for First Amendment considerations to come into play there must have been a conscious intent to communicate on the part of the actor at the time of the event. The Indian children in Pawnee, Oklahoma, may not have been aware that they were advertising their culture by going to school with their hair in braids. It should suffice if their parents testify on their behalf that this hairstyle was a meaningful mode of expressing their tribal values. Or, a young man who, in a fit of anger about a war he feels is unjust, impetuously burns his draft card in front of a group of friends should not have to be fully conscious at that moment that he is making a political statement. It should be enough if, after the fact, he recognizes and claims that this is what he was doing. Courts will have to have some latitude to decide in each case, on the basis of the facts available to them, whether the particular claim is a bona fide one or is simply an after-the-fact ruse to seek First Amendment protection for what was not intended consciously or unconsciously, to be an act of communication when it occurred.
As for the Columbia Law Review's suggested "requirement that others can recognize the conduct as communication" and that, furthermore, it is not sufficient for just "one or two good friends" to so recognize it, but that it "must be calculated to communicate to some substantial audience," I do not see the justification or necessity for such criteria. Quite commonly people change the styles of their hair or dress with the intention of communicating some message to others, and they go unnoticed. Such an abortive effort is still an attempt to communicate and deserves to be treated as such, even though it has fallen on unseeing eyes. As to the additional requirement that a "substantial audience" must perceive the act as one of communication, there seems to be no justification for that either. In the case of the dung heap on the city hall steps, for example, if only the mayor and nobody else got the message it would be as much an act of communication as if the whole world knew that something more was involved than just a pile of manure.
Sometime ago there was broadcast a televised dramatization of the autobiography of Miss Jane Pittman, an ex-slave who lived a life of dedication to the advancement of her race. The climax of her life story came when the 108-year-old Miss Pittman, closely watched by a coterie of her followers and a gathering of Southern white townspeople and policemen, slowly and leaning heavily on her cane, walked up a long sidewalk leading to the county courthouse where, just outside the building, she took a drink of water from a fountain marked "For Whites Only." In this particular instance Miss Pittman's audience had no illusion that her action occurred just because she was thirsty.
But even if all of those onlookers, or all but one or two of them, had been too insensitive to comprehend what was going on, the event would have been no less symbolic because of that. It is the symbolism in the actor's behavior and not the response of the audience that should bring First Amendment considerations into play.
This is not to say that First Amendment protection will always follow. Just
as in cases of verbal communication and of purely symbolic nonverbal conduct.
the right to freedom of speech sometimes must give way to competing concerns.
But it should not give way simply because acts, rather than words, were the
vehicle for expression. If justifications are to be found for restraining
communicative behavior they must be found in the context and in the effects of
that communication upon other fundamental interests.
A Catalogue of Competing Concerns
Our real dilemma, then, in interpreting the First Amendment is not in deciding whether speech should ever be abridged but in determining the circumstances which may justify restrictions on communication. The history of U.S. Supreme Court decisions in the First Amendment area has been essentially a history of attempting to identify those circumstances.
In its first major effort, in 1919, the Court said, "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." 55
The "substantive evil" in that particular case was resistance to wartime conscription.
In 1942, as we have seen in the last chapter, the Supreme Court ruled "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." 56
To reconcile this principle with its 1919 precedent, the Court in 1952
explained, "Libelous utterances, not being within the area of
constitutionally protected speech, it is unnecessary, either for us or for the
State courts, to consider the issues behind the phrase 'clear and present
danger.' Certainly no one would contend that obscene speech, for example, may be
punished only upon a showing of such circumstances. Libel, as we have seen, is
in the same class." 57
In 1949 another kind of exception was carved from the First Amendment. In that year the Supreme Court said, "It rarely has been suggested that the constitutional freedom of speech extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now." 58 The "valid criminal statute" to which the Court was then referring was a Missouri antitrust law.
A decade later the Supreme Court was asked to decide whether an individual could, on First Amendment grounds, refuse to answer the questions of a Congressional committee investigating alleged un-American activities. Said the Court in 1959, " . . . the protections of the First Amendment . . . do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances." 59
On this occasion the Court struck that balance in favor of the congressional committee's interest in getting answers to its questions.
In 1965 the Supreme Court explicitly affirmed another principle which had been implicit in earlier decisions. The Court said, "The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy." 60
In the particular case before the Court, it was decided that, if the state wishes, it can set places like a courthouse out of bounds to demonstrators.
In its most recently enunciated general principle, the Supreme Court in 1969 decided that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 61 In the circumstances of the case then before it, the Court held that a speech made at a Ku Klux Klan rally in Ohio did not fall within the excepted category and was therefore protected by the First Amendment.
In all of these cases, whether the Supreme Court placed reliance on a clear-and-present-danger test, a categorization of speech into protected and unprotected classes, an integral-part-of-illegal-conduct criterion, a balancing doctrine, a time and place regulation, or an incitement-to-lawless-action formulation, the determination was made that certain kinds of competing interests can justify restrictions on communication. It shall be the purpose of the remainder of this book to examine each of the claims that are put forth as potential competitors to freedom of expression
and to assess the validity of those claims in light of the long-range goals
of the First Amendment and the basic values of an open society.
Endnotes
1. Cohen v. California, 403 U.S. 15 (1971) at 18.
2. The First Amendment and the Future of American Democracy (New York: Basic, 1976), pp. 186-205.
3. Cohen at 25-26.
4. Franklyn Haiman, "Speech v. Privacy: Is There a Right Not to Be Spoken To?" Northwestern University Law Review 67 (1972): 189.
5. Political Freedom (New York: Harper & Bros., 1948).
6. Meiklejohn's grounding of freedom of speech in the necessities of the process of self-government has had profound influence on First Amendment theory and practice, since the acceptance of his premise sharply circumscribes the arena in which First Amendment protections operate. Put in its simplest terms by Meiklejohn, Political Freedom, p. 26: "The First Amendment . . . is not the guardian of unregulated talkativeness. It does not require that, on every occasion, every citizen shall take part in public debate.... What is essential is not that everyone shall speak, but that everything worth saying shall be said." Following this thesis, legal scholars such as Lillian R. BeVier, "The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle," Stanford Law Review 30 (1978): 299, and Robert Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47 (1971): 1, have urged that the constitutional guarantees of freedom of speech and press be interpreted as encompassing only political speech. Similarly, Supreme Court justices like John Paul Stevens have assigned a lower order of value to categories of expression such as sexually oriented communication than to political dialogue. See discussion in Chapter 9 of Justice Stevens's opinion in Young v. American Mini Theatres, 427 U.S. 50 (1976). In contrast to the Meiklejohnian view, writers such as C. Edwin Baker, "Scope of the First Amendment Freedom of Speech," UCLA Law Review 25 (1978): 964, have looked to concepts of individual autonomy, integrity, creativity, and self-expression as root values underlying the First Amendment, leading Baker, for example, to propose a "liberty model" of the First Amendment in contradistinction to the self-government model.
One need not adopt either of these views to the exclusion of the other. Thomas Emerson, for instance, lists individual self-fulfillment plus participation in decision making, the search for truth, and the maintenance of stability as underpinnings for his "full protection" theory of freedom of expression. The System of Freedom of Expression, pp. 6-7. And Vincent Blasi, in proposing still another basic function of the First Amendment-the "checking value" on possible government excesses and corruption--makes clear that he views his theory as complementary to, rather than a substitute for, other free speech values. See The Checking Value in First Amendment Theory, Samuel Pool Weaver Constitutional Law Series no. 3 (Chicago: American Bar Foundation, 1977), p. 528. It is similarly my position that none of the values of free expression which have been identified here or elsewhere need be, or should be, excluded as foundation stones of our First Amendment edifice.
7. Book review of Alexander Meiklejohn's Political Freedom, Harvard Law Review 62 (1949): 891.
8. Political Freedom, p. 54.
9. Dissenting opinion in Gertz v. Welch, 418 U.S. 323 (1974) at 358-59.
10. Chafee, Zechariah, Free Speech in the United States (Cambridge: Harvard UP, 1948), pp. 149-50.
11. Chaplinsky v. New Hampshire at 571-72.
12. Ibid. at 572.
13. "Verbal Acts and Ideas The Common Sense of Free Speech," University of Chicago Law Review 16 (1949): 328. This note concludes that the First Amendment protects only words of "an idea-conveying nature" and not "verbal acts."
14. Free Speech in the United States, pp. 151-52.
15. The System of Freedom of Expression.
16. Ibid., p. 3.
17. Ibid., p. 60.
18. Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950) at 971.
19. The System of Freedom of Expression, p. 61.
20. Ibid., pp. 337-38.
21. Ibid., p. 338.
22. Ibid.
23. Gompers v. Bucks Stove and Range Co., 221 U.S. 418 (1911) at 439.
24. The System of Freedom of Expression, p. 445.
25. Edward T. Hall's The Silent Language (Garden City, N.Y.: Doubleday, 1959) was the forerunner of a flood of books and journal articles dealing with the nonverbal communication process. See, for notable examples, Ray Birdwhistell, Kinesics and Context (Philadelphia: University of Pennsylvania Press, 1970); Mark Knapp, Nonverbal Communication in Human Interaction (New York: Holt, Rinehart & Winston, 1972); and Albert Mehrabian, Silent Messages (Belmont, Calif.: Wadsworth, 1971).
26. The legal community should not be criticized too severely for its inertia in this respect in view of the fact that the professional association of scholars and teachers of speech did not change its name from Speech Association of America to Speech Communication Association until 1970 and has rejected proposals to go an additional step to calling itself the American Communication Association.
27. Tinker v. Community School District.
28. West Virginia Board of Education v. Barnette.
29. U.S. v. O'Brien, 391 U.S. 367 (1968).
30. Smith v. Goguen, 415 U.S. 566 (1974); Spence v. Washington, 418 13.S. 405 (1974); Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (1974); Sutherland v. Illinois, 418 U.S. 907 (1974); Farrell v. Iowa, 418 U.S. 907 (1974), 421 U.S. 1007 (1975).
31. Stromberg v. California.
32. West Virginia Board of Education v. Barnette at 632.
33. U.S. v. O'Brien at 376.
34. "Symbolic Conduct," Columbia Law Review 68 (1968): 1102.
35. Ibid., pp. 1109-10.
36. Ibid., pp. 1113-16.
37. Brief of Appellant, In the Supreme Court of the United States in Street v. New York, October Term, 1968, p. 22.
38. The System of Freedom of Expression, p. 80.
39. Ibid., p. 81.
40. Ibid.
41. Ibid., p. 84.
42. Ibid., p. 86.
43. Ibid., p. 89.
44. Paul Watzlawick, Janet Beavin, and Don Jackson, The Pragmatics of Human Communication (New York: Norton, 1967). p. 49.
45. From the Virginia Statute Establishing Religious Freedom.
46. Melville Nimmer relies on this same concept when he distinguishes, for First Amendment purposes, between the "meaning" and "non-meaning" effects of an act. "The Meaning of Symbolic Speech under the First Amendment," University of California at Los Angeles Law Review 21 (1973): 36.
47. Thomas Emerson approaches this same distinction in discussing the obscenity issue when he talks about "whether a person is trying to tell something or do something, whether his conduct is representation or actuality," in The System of Freedom of Expression, p. 495.
48. People v. Stover, 191 N.E.2d 272 (N.Y. 1963).
49. Rider v. Board of Education of Independent School District, 414 U.S. 1097 (1973).
50. The Chicago Sun-Times (April 17, 1975) shows a picture of striking garbage collectors dumping a load of manure on the steps of the city hall in Berwyn, Illinois, as a protest addressed to the mayor.
51. See endnote 46, above.
52. See, for example, U.S. v. Malinowski, 472 F.2d 850 (3d Cir. 1973).
53. The New York Times (October 29, 1976) describes the dropping of 125,000 leaflets on the Government Center area of Boston by the Mystic Valley Gun Club in opposition to a referendum proposing to ban the private ownership of handguns.
54. "The Meaning of Symbolic Speech," pp. 44-45.
55. Schenck v. U.S., 249 U.S. 47 (1919) at 52.
56. Chaplinsky v. New Hampshire at 571-72.
57. Beauharnais v. Illinois, 343 U.S. 250 (1952) at 266.
58. Giboney v. Empire Storage and Ice Co. at 498.
59. Barenblatt v. U.S., 360 U.S. 109 (1959) at 126.
60. Cox v. Louisiana, 379 U.S. 536 (1965) at 554.
61. Brandenburg v. Ohio at 447.
2
Haiman chapter: What is Speech?
2