Symbolic Expression is Freedom of Speech

After taking a look at four cases that have occurred over the years, it was evident that the First amendment, which protects American’s rights to freedom of speech, freedom of religion, freedom of press along with other rights is not always upheld. In certain situations, an America citizen will speak out against a government policy exercising their right to freedom of speech, when doing this they should be protected under the first amendment and shouldn’t be in fear of the law for expressing their thoughts.

In the first incident regarding free speech and the first amendment, a man named David Paul O’Brien burned his selective service certificate along with three others on the court house steps in Boston. There was a crowd who witnessed the event and soon members of the crowd began attacking O’Brien and he was arrested and brought into the courthouse where he was then charged with violating the 1965 Amendment that prohibited the destruction or mutilation of selective service certificates arguing that it was unconstitutional to deface them.

O’Brien was taken to court on these charges and he had never denied doing it. O’Brien who was the respondent in this case, defended his argument by saying that he was merely trying to make his feeling about the Vietnam War public. He wanted his anti-war beliefs to be known to others. O’Brien argued that it was unconstitutional for him to be charged with breaking the 1965 Amendment because his freedom of speech, which is granted in the first amendment were not being recognized. He believed that the 1965 Amendment served no real purpose and had no legal legitimacy. The constitutional question now at stake is whether or not the first amendment protects O’Brien’s rights to freedom of speech when there are no words actually spoken but an idea is being expressed.

O’Brien’s arguments were rejected and the jury deemed that they could not inquire on Congress’s motives when the 1965 Amendment was created. Most importantly though, it was stated that part of Congress’s powers include the right to raise armies. Their right to raise armies is protected under the necessary and proper clause and because of this Congress has the right to administer the selective service certificates and administer the draft during times of war making the action O’Brien took illegal.

The argument continued with O’Brien saying that Congress was not made to suppress freedom. He argued that by burning the certificate it represented his opposition to the Vietnam War and was therefore represented free speech. This created O’Brien’s main argument: symbolic acts of speech should be protected under the first amendment. O’Brien’s argument was not heard though and he was still convicted and from there on the precedent was set, Congress has the right to declare war and the draft and limit freedom of speech if they deem it “necessary and proper”.

The US government acted as the petitioner in the case of 1968 with O’Brien and set the precedent for the cases to follow. In 1970, Daniel Jay Schact was indicted by the US District Court for the violating a law stating that it is a crime for any person to wear a military uniform without authority. Schact was tried and convicted in February of 1968 and charged with a fine of two hundred and fifty dollars and up to six months in prison. Schact rebutted the case. He admitted that he had worn parts of a uniform but said that he was wearing the uniform as an actor. He claimed that he was doing a street skit and was acting. He had intended to do an anti-war demonstration in which the American presence in Vietnam was displayed as “evil.” The government decided that what Schact was doing was not a theatrical performance and so Schact could not claim that he was being an actor. The idea of the time became clear, the first amendment protected free speech when people were praising the war, but when people spoke out against the war, the constitution was not protecting them.

These same ideas were continued in the Spence v Washington case in 1974. The appellant had displayed his own US flag from his apartment window but he had taped a large peace symbol on it. Three Seattle police officers came up to his apartment and arrested him. Spence was being charged on “improper use,” which stated that the American flag could not be altered, marked or changed in anyway and could not be displayed in such a manner.

Spence was tried and convicted with a ninety-day confinement sentence. The case was reviewed again and Spence stuck to his case. He stated that he had put the peace symbol on the flag as a protest against the Cambodian invasion and the Kent State University killings. He wanted to associate the American flag with peace, “I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace,”(Spence v Washington). He wanted to make it clear what his purpose was and that he made a temporary change to the flag, it was tape. Regardless of his testimony, the jury convicted him as guilty and he received ten days in jail and a seventy-five dollar fine.

There were additional factors taken into consideration though. The flag was privately owned and did not belong to the government. The flag was also displayed on private property and was not in a public area. Putting up the flag was not meant to cause violence. An important part of this case was the fact that what he displayed was a flag, “In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas,” (Spence v Washington). If the flag was therefore considered an expression and a form of speech then the first amendment was being violating.

The next case brought up was in 1989 between Texas and Gregory Lee Johnson. Gregory Lee Johnson was charged for desecrating the American flag and violating Texas Law during a public protest. There was a political demonstration to protest polices of the Reagan administration and the protest ended up in front of the Dallas City Hall. Johnson unveiled the flag and set it on fire. About a hundred protestors were chanting against America and only Johnson was convicted. He was tried and convicted with one year in prison and a two thousand dollar fine.

His conviction was said to be the flag burning and not the insulting words he used. The question then became whether or not Johnson could use the first amendment to help his case. The first amendment protected free speech and that could include more than just spoken words. During his case Johnson argued that he burned the flag as an expression of speech, “Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication, ‘to implicate the First Amendment’,”(Texas v Johnson). Texas then argued that Johnson was convicted because his expression was turning violent and they were trying to subdue the violence. Justice Stevens then took much time and deliberation on the case and decided that the flag deserves protection from desecration because it symbolizes the ideals of America.

In the case US v O’Brien, Congress asserted their power in a situation that they felt it was necessary. Although the case was about the defiance of the 1965 Amendment it all came back to the first amendment and being able to express freely. The same happened in the case with Shact. He defied the law but it was brought back to the constitutional idea of being able to have the freedom to express one’s self regardless of what they are saying even if they are speaking out against the government. In the Spence v Washington case, Spence was trying to express his views on American and how it should be more peaceful. His views should have been allowed to be expressed because even though he was “defying” American property by taping a peace sign onto the flag, he was trying to show his views and express them symbolically which should be protected under the first amendment. These same ideas followed all the way to the case of Texas v Johnson where he burned the American flag publically. He was arrested for disturbing the peace and defacing the American flag. The ruling should allow him to express his political beliefs regardless of what they are.

In all four cases the government has charged these people on different issues but the main issue behind each case is whether or not symbolic expression should be considered freedom of speech. If symbolic freedom is considered freedom of speech then it must be protected under the first amendment of the constitution.