First Amendment protects more than just words

Friday, September 23, 2011

Flashing headlights, honking horns, armbands, crosses, tattoos and even strange-colored hair — what could they possibly have in common? Answer: They all can trigger the protections of the First Amendment free-speech clause.

Covering far more than spoken or printed words, the First Amendment protects a wide range of nonverbal expression.  The U.S. Supreme Court recognized as much as far as back as 1931 when it hinted that the display of red flags by 19-year-old Yetta Stromberg at a communist youth-organizer camp in Stromberg v. California was a form of free expression.

In 1969, the Court famously declared in Tinker v. Des Moines Independent School District that public school students in Iowa engaged in symbolic expression “akin to pure speech” when they wore black peace armbands to protest the Vietnam War.

Even more controversially, the Court ruled in Texas v. Johnson (1989) that the act of burning the flag was a form of free expression.

Earlier, in Spence v. Washington (1974), the Court had devised a two-part test to evaluate whether expressive conduct was expressive enough for the First Amendment to apply. Spence involved a college student who affixed peace symbols to a flag and hung it upside down from his dorm window to protest the National Guard shootings at Kent State University. The Court ruled for the student. Part one of the test it created is that the “speaker” must intend to convey a particular message. Part two is that the expression must be reasonably understood by others. The black peace armbands in Tinker, for instance, conveyed the particular message of opposition to war.

Let’s take an example from current headlines in Florida, where a class-action lawsuit has been filed over the ticketing of individuals for flashing their bright lights. Flashing headlights conveys a particular message: “Slow down, there’s trouble ahead” or “Slow down, there’s a police officer with radar ahead.” Other drivers understand the message of headlights flashing, as most respond by using a little more caution and obeying traffic laws.

Similarly, individuals often engage in expressive conduct when they honk their horns, whether it’s to convey displeasure at other drivers or to protest something.

Make no mistake — First Amendment protection does not stop at verbal and printed expression. Our liberty extends much deeper and allows other creative ways for people to express themselves.

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