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Symbolic Speech Explained with Examples

Priyanka Athavale Aug 24, 2020
Symbolic speech, as opposed to pure speech, does not make use of words, but rather actions, to express an opinion or a point. This Story explains the term symbolic speech in detail, and also provides a few legal and everyday examples.

Silent Communication

Pure speech is the exact opposite of symbolic speech. It makes use of words and is completely verbal in nature. Symbolic speech, on the other hand, makes use of actions, which is why it becomes 'symbolic'.

Symbolic speech can be defined as a term that relates to the right of free speech under the First Amendment of the Constitution. 
It refers to the actions or conduct which serve to communicate an idea, message, or opinion, as against the use of verbal speech. This term is actually quite self-explanatory. As the definition says, it is the utilization of conduct to convey or express a message, opinion, or idea, as opposed to talking about it. 

Speech is not always only verbal, it is also non-verbal, i.e., body language.

Picketing, holding rallies, marches, silent protests, stand-ins, sit-ins, demonstrations, flag waving, wearing accessories like armbands or buttons, etc., are examples of symbolic speech. 

Here, people come together to support a cause or oppose a situation without being verbal about it, although they make clear the reason for their unrest.

Some Everyday Examples

Let's take a situation in real life as an example to help understand the concept. Suppose some stranger comes up to you. He has worn a trench coat, dark shades, and a hat. He stands next to you. You don't like this guy; your gut tells you there is something shady about him. What do you do?
You shift a little to the other side, turn your back to him, put music in your ears, or something similar that let's out the message that you want him to keep distance and are not interested in any kind of interaction. What is this behavior of yours referred to as? It is non-verbal speech.
To cite another example, this time let's consider an actual scenario of a symbolic speech. The January 2015 massacre in Paris, of cartoonists and columnists at the Charlie Hebdo newspaper by two terrorists sent the world into collective mourning.
People all over the globe condemned the shootings, and millions of supporters of free speech and freedom of expression adopted the term 'Je suis Charlie', which translates to 'I am Charlie'. Peace rallies began all around, with people displaying this slogan everywhere.
Here, symbolic speech is the act of using a slogan to communicate support for the slain newspaper employees.

The Doctrine

The doctrine of symbolic speech states the following.
A government regulation is sufficiently justified if it is within the constitutional power of the Government -
  • If it furthers an important or substantial government interest.
  • If the governmental interest is unrelated to the suppression of free expression.
  • If the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Limitations of Symbolic Speech

The First Amendment of the US Constitution gives citizens the freedom of speech and expression. It means that they will not be controlled or censored by the Government for every little thing they say, and that they can express themselves without any fear. It does not draw a bias between favorable and unfavorable opinions.
However, it does not give a person free rein to say anything about anyone, anywhere and at any time. Instigating words that encourage violence or similar unrest, which results in loss and damage, are not protected by the Amendment. It also does not back obscene and profane words.
If you lie about a person and that person subsequently sues you for defamation, then you cannot claim protection under the Amendment. Hence, symbolic speech is acceptable only to the extent that it does not have any damaging effects.

Legendary Court Cases

The following are examples of court cases that were tried in the US, some of which supported symbolic speech and some of which didn't.

United States v. O'Brien
On March 31st, 1966, David Paul O'Brien and four other people burned their Selective Service registration certificates.
They did it at the entrance of the South Boston Courthouse, in front of a large crowd that also happened to contain some FBI agents.  The angry crowd began to attack the men, and so the agents took them inside the building and to safety.

O'Brien confessed to the act of destroying the certificate and even allowed photographing its charred remains.
He was charged with violating section 462(b)(3) of the Selective Service Act, which made it a criminal offense to "knowingly destroy or mutilate" the certificate. He contested that the First Amendment protected free speech, and that burning the card was his way of protesting the Vietnam war, and also encouraging other people to do so.
However, the court ruled against him 7-1 because as per the doctrine, the First Amendment did not offer protection to free speech where the government had substantial interest. In this case, it was recruiting young men for the military to go to war if required.
Chief Justice Warren, who upheld the ruling, also compiled a series of questions and conditions to help judges determine, in the future, whether an act of speech was protected under the First Amendment or not. This is now known as the O'Brien Test.
Texas v. Johnson

This is a case of flag desecration, where the defendant was held not guilty for expressing his opinion against the Reagan government. During a protest in 1984, Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade, took a hold of the United States flag, held it up, and set it alight.
The prevailing law against flag destruction in Texas at the time got him arrested, jailed, and fined two thousand dollars. The court, however, ruled 5-4 in Johnson's favor.
Justice Brennan, the judge overseeing the case, was of the opinion that "because such other actions in relation to the flag such as saluting, displaying are considered to be a form of expression, so must the burning be too ..."
He said that the government's interest must be related to the expression; in this case, the Texas law was passed to prevent any violence from ensuing due to the destruction of the flag, which was unrelated to the burning. Hence, Johnson's act was protected under the First Amendment.
Brown v. Louisiana

Five African-American people, including the defendant Brown, visited the Audubon Regional Library in Clinton, Louisiana.
Brown asked the librarian for a book; she informed him that the book was unavailable, and that she would request it from the State Library, after which she would either mail it to him, or he could come and pick it up himself. She then asked them all to leave.

Instead of leaving, Brown sat on one of the library chairs, while the others stood surrounding him.
This was to protest 'denial of their rights and equal treatment due to the color of their skin'. The protest was silent, and none of them made a noise. They were arrested by the Sheriff for breach of the Louisiana peace statute,
under which "intent to provoke a breach of the peace, or circumstances such that a breach of the peace may be occasioned thereby" or "wherein a crowd in a public place refuses to disperse" are criminal acts. However, Justices Fortas, Warren, Brennan, Douglas, and White ruled in favor of the defendant.
According to Justice Fortas, the claim that the statute had been breached lacked sufficient evidence, and that it was not as disruptive as some similar situations that the Court had dealt with earlier.
Cohen .v California

In 1968, Paul Cohen stepped into a courthouse in Los Angeles carrying a jacket that had the phrase "F**k the Draft" printed on it. However, he was not wearing the jacket; it was under his arm.
A police officer saw the jacket and arrested Cohen on grounds of "willingly, maliciously, and unlawfully disturbing the peace and quiet, by engaging in tumultuous and offensive conduct."
However, the court ruled in Cohen's favor 5-4. Justice Harlan, who oversaw the trial, said "Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."
Schneider v. New Jersey

This was a case that involved three other states―California, Milwaukee, and Massachusetts. They had banned people (Jevovah's Witnesses) from distributing pamphlets in public and private areas in the cities.
The pamphlets were meant to impart information to the public. The reason for the ban, as stated by the authorities, was to keep the cities clean and litter-free.

The distributors were subsequently charged.
However, the court ruled in their favor, stating that keeping the streets clean was not directly related to pamphlet distribution and was, hence, not a compelling reason. It restricted the defendants' right to free speech under the First Amendment.
Justice Owens stated that the cities could regulate the distribution and make laws against those whose intentions were malicious. Prohibiting imparting of information from one person to another on these grounds was not valid.
Now you may have a fair idea of what symbolic speech is. You will find many examples of it because most of them are famous court cases and rulings. All in all, we can say that it is a pretty powerful medium to express a message.