Читать книгу American Democracy in Context - Joseph A. Pika - Страница 138

The category of symbolic speech consists of forms of expression such as signs or symbols instead of pure speech. The Supreme Court first accorded First Amendment protection to symbolic speech in the 1931 case Stromberg v. California. In that case, the Court overturned the conviction of 19-year-old Yetta Stromberg for flying a red flag at a communist youth camp in California. In so doing, it struck down a California law that made it a felony to display a red flag “as a sign, symbol or emblem of opposition to organized government.”⁵⁰ Since the 1960s, the Supreme Court has applied First Amendment protection to a number of other forms of symbolic expression. For example, it upheld the right of high school students to wear black armbands to class as a form of protest against the Vietnam War in Tinker v. Des Moines Independent Community School District (1969).⁵¹ The majority did not recognize an absolute right to wear the armbands, but it claimed that in this case there was no evidence that the armbands had disrupted classroom routine and therefore First Amendment rights should prevail.

Mary Beth Tinker stands with her brother and mother after learning that the Supreme Court upheld her right to wear an armband signaling her opposition to the Vietnam War while at school. Should students’ free speech rights be more limited than other citizens?

Bettmann / Getty Images

The issue of student speech continues to be controversial. In 2002, high school students in Juneau, Alaska, were allowed to miss their regularly scheduled classes in order to watch the Olympic torch pass by at a school-sponsored event across the street. One of the students displayed a banner at the event that read “Bong Hits 4 Jesus.” The school principal seized the banner (school policy prohibited the display of messages promoting drug use at school events) and suspended the student. Were the student’s First Amendment rights violated? A 6–3 majority of the Supreme Court said no in Morse v. Frederick (2007).⁵² Only one justice in the majority (Clarence Thomas) argued that students have no free speech rights and that Tinker should be overturned. The rest of the majority simply argued that the school’s interest in deterring drug use by students justified its action in this case.

Symbolic speech cases often raise issues of conduct, which consists of actions rather than words. Conduct (such as trespassing, disturbing the peace, or destroying property) may accompany speech and can be punished by the government. However, speech and conduct can be intertwined so closely that it may be difficult to determine where one ends and the other begins. For example, Justice Black dissented in the Tinker case, arguing that students wearing armbands amounted to constitutionally unprotected conduct rather than constitutionally protected speech. His concern focused on the potential disruption to the learning environment.

Another symbolic speech case that raised the issue of conduct is Texas v. Johnson (1989), which involved burning the American flag. The Supreme Court voted 5–4 to overturn the conviction of Gregory Johnson for burning an American flag to protest the policies of President Ronald Reagan.⁵³ Johnson burned the flag outside the 1984 Republican National Convention in Dallas, Texas. President George H.W. Bush responded to the Court’s controversial ruling by calling (unsuccessfully) for a constitutional amendment to protect the flag. In Texas v. Johnson, the majority emphasized that the Supreme Court had consistently rejected the idea that an “apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea” but added that there are some types of conduct—such as the burning of the American flag, in that case—that are “sufficiently imbued with elements of communication” to fall within the scope of First Amendment protection.⁵⁴ The challenge remains: How and where to draw that line?

Flag desecration laws vary around the world. Some advanced democracies, such as Israel, Italy, and Switzerland, ban it and provide harsh penalties (including hefty fines and jail time). Others, such as Denmark and Japan, do not forbid the burning of their own flag, but prohibit desecrating flags of other countries. In 2016, President-elect Trump tweeted, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail.”⁵⁵