Symbolic Speech: What Is Protected Under The First Amendment And What Is Not?

In government and law terms, symbolic speech stands for a message someone is trying to convey by using actions rather than words. There are many forms of symbolic speech, and it has been interpreted that symbolic speech is technically protected under the 1st Amendment to the Constitution of the United States as freedom of speech. However, some forms of symbolic speech have been deemed as unconstitutional over the years and this article will tell you what is protected and what is not.

Established by former Chief Justice Earl Warren and his Supreme Court was a way to figure out if a

form of symbolic speech violates the 1st Amendment and it is called the O'Brien Test, named after the 1966 Supreme Court case United States v. O'Brien (1966). This test involves four guidelines in which the law in question must adhere to:

1. The law must be within the consitutional powers of the government to enact.

2. The law must further government or other important interest.

3. This further interest must not be related to suppressing speech. 

4. The law must not prohibit speech more than is necessary to further that interst. 

Over the years, the Supreme Court has heard many cases involving symbolic speech. In Tinker v. Des Moines (1965), the court heard a case about five students wearing black armbands with a white symbol on top and the school system wanting principals from these students' schools to suspend them for wearing them. The court ruled in

favor of Tinker and the rest of the plaintiffs, defending their right to wear the armbands and their symbolic speech. 

In Texas v. Johnson (1984), another court case involving symbolic speech, Johnson, at a protest of the Reagan administration, burned an American flag, breaking a no flag burning law in the state of Texas. He was arrested and sentenced to one year in prison, but the Supreme Court, on a 5-4 vote, voted on behalf of Johnson. Burnign the American flag, though frowned upon by some, is legal and protected  under the First Amendment. 

In the end, most symbolic speech is protected. You can demonstrate almost anything as long as it does not harm or hurt another person or the United States as a whole. One piece of symbolic speech that was found to not be protected is burning your draft card because a draft card is technically property of the United States government and therefore, you have no right to burn it. Though it can be confusing what types of symbolic speech are protected and what types are not, it still is amazing that the Constitution protects our right to say what we want to say and how we want to say it.

Article Written By R. Turk

My name is R. Turk, and I have been a content writer and columnist on Experts Column for several years now. Check out my old articles, or read some of the new ones coming your way soon. I took a hiatus from writing, and now, I am back and better than ever.

Last updated on 29-07-2016 6K 0

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