Adventures in Symbolic Speech

November 9, 2004

The Law in Stromberg “Any person who displays a red flag,

banner or badge, or any flag, banner, or device of any color or form whatever in any house, building, or window, (1) as a sign, symbol, or emblem of opposition to organized government, or (2) as an invitation or stimulus to anarchistic action, or (3) as an aid to propaganda that is of a seditious character is guilty of a felony…”

Some background Post World War I—fear of

communism and a worker’s revolution

Communist Party of America Yeta Stromberg, camp counselor Do you know the difference between

a conjunctive construction and a disjunctive construction?

S. Ct. ruling: 7-2 overturning Stromberg (1931)

Why is Stromberg significant?

Arguably the first to promote symbolic speech as protected speech

The case’s influence becomes stronger over time as other Courts cite it as precedent

What is the distinction between speech, conduct, and speech plus?

The test for symbolic speech

To what extent did the maker of the symbol intend to convey a message using symbolic conduct?

To what extent did the audience recognize and understand the speaker’s conduct as communication?

West Virginia v. Barnette (1943): Some Questions….

So who were the Gobitis children? Why is their religion a significant

issue in this and the Barnette case? What does bigamy have to do with

saluting the flag? What led to the Court reconsidering

its previous actions and accepting the Barnette case for consideration?

The Barnette decision

May a government force speech, that is, in this case, may the government compel its citizens to publicly affirm that government?

Why is Barnette also an important symbolic speech decision?

Justice Jackson in Barnette

“Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind…A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”