Keith Mack
The First Amendment protects the right to freedom of speech, freedom of the press, and the right to peaceably assemble and petition the government. However, communication is not solely accomplished by face-to-face speech, broadcast speech, or writing. Expressive conduct includes picketing, marching, distributing leaflets, and sit-ins, while symbolic conduct includes flag desecration and draft-card burnings. These methods of expression are more susceptible to regulation and restriction than pure speech, and violent conduct is not protected by the First Amendment. The First Amendment also does not protect conduct that communicates ideas by patrolling, marching, and picketing on streets and highways in the same way as pure speech.
| Characteristics | Values |
|---|---|
| Expressive conduct | Picketing, marching, distribution of leaflets and pamphlets, addresses to publicly assembled audiences, door-to-door solicitation, and sit-ins |
| Symbolic conduct | Flag desecration, draft-card burnings |
| Violent conduct | Not protected by the First Amendment |
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What You'll Learn
Expressive conduct
The evolution of expressive conduct can be traced back to the early 20th century, when the Supreme Court began to grapple with the concept of symbolic speech. One of the earliest and most influential cases was Stromberg v. California (1931), in which the Court struck down a state law prohibiting the display of red flags as a form of symbolic speech, protected under the First Amendment.
In West Virginia State Board of Education v. Barnette (1943), the Court held that compulsory flag salute laws were unconstitutional because they amounted to compelled symbolic speech. In Tinker v. Des Moines Independent Community School District (1969), the Court held that black armbands worn by students to protest the Vietnam War were symbolic speech and entitled to First Amendment protection. In Texas v. Johnson (1989), the court recognized as speech the burning of an American flag and held that the state could not prohibit this action.
The concept of expressive conduct continues to evolve and adapt to new challenges and issues, such as the role of online platforms in regulating expressive conduct, and the use of artificial intelligence to monitor and regulate such conduct.
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Symbolic conduct
The First Amendment to the US Constitution protects free speech. This protection generally extends to symbolic speech or expressive conduct. Symbolic speech refers to the use of emblems or flags to represent a system, idea, institution, or personality. When conduct or action has a communicative content, it may implicate the First Amendment, but this does not make it immune from government regulation or prohibition.
The Supreme Court has clarified that the First Amendment's protection of free speech includes actions that may be considered offensive to some members of society. In Tinker v. Des Moines Independent Community School District (1969), the Court struck down a public school district policy prohibiting students from wearing black armbands to symbolise opposition to the Vietnam War. The Court affirmed that public schools could regulate student conduct but only for reasons beyond merely avoiding discomfort with an unpopular viewpoint.
In United States v. Eichman (1990), the Court ruled that the Flag Protection Act, which banned flag desecration, was unconstitutional. The Court found that the Act sought to regulate the "communicative impact" of expressive conduct that others found offensive, rather than protect the physical integrity of the flag. This ruling sparked congressional efforts to amend the Constitution to authorise flag desecration legislation.
The Court has also addressed the permissibility of government regulation of symbolic speech in cases involving labour picketing and boycott activities. In FTC v. Superior Court Trial Lawyers Ass'n (1990), the Court upheld the application of antitrust liability to a trial lawyers' association boycott, finding that the government's power to regulate economic activities with an incidental effect on speech did not extend to suppressing boycott activities involving speech on matters of public affairs.
In evaluating the constitutionality of government regulation in this context, the Court has applied the standards set forth in United States v. O'Brien, which permits regulation if it is within the constitutional power of the government, furthers a substantial governmental interest unrelated to the suppression of free expression, and imposes only incidental restrictions on First Amendment freedoms.
In summary, symbolic conduct or expressive conduct that communicates a message is generally protected by the First Amendment. However, the government may regulate or prohibit such conduct in certain circumstances, particularly when important governmental interests are at stake. The Court has provided guidance on the permissible scope of government regulation of symbolic speech through landmark cases such as Tinker, Eichman, and O'Brien.
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Freedom of speech
The First Amendment also protects the freedom of speech in the form of the press, the right to assemble, and the right to petition the government. The courts play a crucial role in interpreting the Constitution and ensuring that the rights guaranteed within it are upheld. For example, in the case of West Virginia Board of Education v. Barnette, the Supreme Court upheld the right not to salute the flag as protected under the First Amendment.
While freedom of speech is a fundamental right, it is not absolute. The Supreme Court has struggled to define the exact boundaries of what constitutes protected speech. For instance, in the case of Tinker v. Des Moines, the Court upheld the right of students to wear black armbands to school as a form of protest, while in Cohen v. California, the Court ruled that certain offensive words and phrases used to convey political messages were protected under the First Amendment. However, in Texas v. Johnson, the Court ruled that burning the flag in protest was symbolic speech protected by the First Amendment, while in Bethel School District #43 v. Fraser, the Court ruled that a student's obscene speech at a school-sponsored event was not protected.
Additionally, the First Amendment does not protect speech that incites imminent lawless action. In Brandenburg v. Ohio, the Supreme Court created a test to determine if speech is protected, stating that if a person intends to incite imminent and likely violations of the law while directing their speech at a specific person or group, their speech is not protected under the First Amendment. Furthermore, the First Amendment only applies to government entities, and private companies and employers can regulate speech on their platforms and within their workplaces without legal repercussions.
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Freedom of assembly
Conduct that communicates is an important aspect of constitutional law, encompassing the right to freedom of assembly and freedom of association. Freedom of assembly is the right of individuals to gather peacefully in public places to express and promote their ideas. This right is often associated with the right to protest and is recognised as a fundamental human right, political right, and civil liberty.
The freedom to assemble peacefully is guaranteed in various national constitutions and international human rights instruments. For example, the Constitution of the United States interprets the freedom to assemble and associate as fundamental rights. Similarly, the Constitution of Russia, in Articles 30 and 31, guarantees the freedom of association and peaceful assembly. Other countries with constitutional provisions for freedom of assembly include Taiwan (Republic of China), Turkey, and Bangladesh.
In the context of US constitutional law, the right to freedom of assembly has been defended in several cases. One notable example is DeJonge v. Oregon (1937), where the Court asserted that the right to hold meetings for peaceful political action is fundamental and protected by the Constitution. The Court emphasised that the purpose of such assemblies, rather than the affiliations of participants, is the critical factor in determining the protection afforded by the Constitution.
The interpretation of constitutional provisions is crucial, as seen in the example of the Second Amendment, where ambiguity prompted a Supreme Court decision in 2008. Courts play a vital role in interpreting the Constitution and ensuring that the rights enshrined within it, such as freedom of assembly, are upheld.
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Freedom of the press
The freedom of the press has been a topic of debate and legal interpretation since the early days of the US. In the Thirteen Colonies, before the signing of the Declaration of Independence, printing presses were subject to a series of regulations and restrictions imposed by British authorities. One of the earliest cases concerning freedom of the press occurred in 1734 when John Peter Zenger, publisher of The New York Weekly Journal, was acquitted of libel charges brought by British governor William Cosby.
The First Amendment was ratified in 1791, but just seven years later, the Federalist Party attempted to stifle criticism with the Alien and Sedition Acts. The Sedition Act made it a crime to publish "false, scandalous and malicious" statements about the government, and these restrictions on the press were very unpopular, leading to the party's eventual dissolution.
Over the years, the Supreme Court has considered the extent to which the press is entitled to freedom from government regulation and restriction. In Houchins v. KQED (1978), Justice Potter Stewart argued that the separate mention of freedom of speech and freedom of the press in the First Amendment acknowledges the critical role played by the press in American society. He asserted that the government must be sensitive to this role and the special needs of the press in performing it effectively. However, in the same year, Chief Justice Burger wrote that the Court had not yet resolved whether the Press Clause confers any special freedom from government restraint on the institutional press.
The Court has ruled that generally applicable laws do not violate the First Amendment simply because they incidentally affect the press. However, laws that specifically target the press or treat different media outlets differently may violate the First Amendment. The Court has also recognised that the press, due to its role in disseminating news and information, is entitled to heightened constitutional protections and governmental sensitivity.
In conclusion, freedom of the press is a fundamental right in the US, protected by the First Amendment. While the exact extent of this freedom has been debated and interpreted over the years, it is clear that the press plays a critical role in American society and is entitled to some degree of freedom from government restriction.
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Frequently asked questions
Conduct that communicates for constitutional law refers to the interpretation of the constitution and the establishment of rules and guidelines for future conduct. This includes the interpretation of ambiguous provisions in the constitution, answering fundamental questions not addressed by the drafters, and providing principles, rules, and standards to govern future conduct.
Examples include the interpretation of the Fourth Amendment, which led to the ruling that a warrant is required to search the contents of a cellphone incident to an individual's arrest. Another example is the interpretation of the Second Amendment, which addressed the right of individuals to keep and bear arms.
Key principles include the protection of individual rights, such as freedom of speech, religion, equal treatment, due process of law, and privacy. Additionally, conduct that communicates for constitutional law aims to define the roles, powers, and structure of different entities within a state, such as the executive, legislature, and judiciary.
