Symbolic Expression and the Original Meaning of the First Amendment

Abstract

People often argue that symbolic expression - especially flag burning - isn't really "speech" or "press," and that the Court's decisions protecting symbolic expression are thus illegitimate.

But it turns out that the original meaning of the First Amendment likely includes symbolic expression. Speech restrictions of the Framing era routinely treated symbolic expression the same as literal "speech" and "press." Constitutional speech protections of that era did so as well, though the evidence on this is slimmer. And the drafting history of the phrase "the freedom of speech, or of the press," coupled with the views of leading commentators from the early 1800s, suggests that the First Amendment's text was understood as protecting "publishing," a term that at the time covered communication of symbolic expression and not just printing. Though the Court has never relied on this evidence, even originalists ought to accept the Court's bottom line conclusion that the First Amendment covers symbolic expression.

Keywords: First Amendment, Freedom of Speech, Symbolic Expression, Expressive Conduct, Flag Burning