"Symbolic Expression Is Fully Embraced by the
First Amendment. - The flag is a symbol. So is the cross. The right
to wield and manipulate these symbols is fully protected by "the
freedom of speech, [and] of the press. ' The First Amendment does
not speak of protecting only "words." The Amendment vests Americans
First Amendment. - The flag is a symbol. So is the cross. The right
to wield and manipulate these symbols is fully protected by "the
freedom of speech, [and] of the press. ' The First Amendment does
not speak of protecting only "words." The Amendment vests Americans
with a broad right to communicate with each other. This communication
takes place through symbols that represent ideas, events,
persons, places, objects, and so on. In fact, words are themselves
symbols. In English, words are made by combining 26 standard
letters, but surely the Amendment protects communication in languages
that rely on unique word-pictures, pictograms, or hieroglyphics.
Surely there is no First Amendment difference between the word
"cross" and the pictographic symbol "+"; between the letters "NAZI"
and the crooked cross swastika hieroglyph...that represents the
same ugly ideas; or between the words "American flag" and the unique
red, white, and blue, star-spangled symbol impressed upon banners.
Nor is it relevant for First Amendment purposes that one does not
orally "speak" a flag or a cross the way one orally speaks words. Is
a deaf citizen's communication by sign language unprotected because
it is not oral? Does the flag not "speak" to us, in every relevant and
nontrivial sense? Does not the cross in a worship service? Does not
the written Constitution? In any event, even the most willful and
stubborn literalist must recognize that the First Amendment yokes the
freedom of speech to the freedom of the press and thereby signals an
intent to embrace all communication, regardless of the precise medium
of transmission. Quite literally, the unique ink marks printed and
pressed upon a cloth are what make the cloth a flag in exactly the
same way that the unique ink marks printed and pressed upon a sheet
of paper make it the New York Times....
takes place through symbols that represent ideas, events,
persons, places, objects, and so on. In fact, words are themselves
symbols. In English, words are made by combining 26 standard
letters, but surely the Amendment protects communication in languages
that rely on unique word-pictures, pictograms, or hieroglyphics.
Surely there is no First Amendment difference between the word
"cross" and the pictographic symbol "+"; between the letters "NAZI"
and the crooked cross swastika hieroglyph...that represents the
same ugly ideas; or between the words "American flag" and the unique
red, white, and blue, star-spangled symbol impressed upon banners.
Nor is it relevant for First Amendment purposes that one does not
orally "speak" a flag or a cross the way one orally speaks words. Is
a deaf citizen's communication by sign language unprotected because
it is not oral? Does the flag not "speak" to us, in every relevant and
nontrivial sense? Does not the cross in a worship service? Does not
the written Constitution? In any event, even the most willful and
stubborn literalist must recognize that the First Amendment yokes the
freedom of speech to the freedom of the press and thereby signals an
intent to embrace all communication, regardless of the precise medium
of transmission. Quite literally, the unique ink marks printed and
pressed upon a cloth are what make the cloth a flag in exactly the
same way that the unique ink marks printed and pressed upon a sheet
of paper make it the New York Times....
If all of this seems to belabor the obvious, I hasten to point out
that many of the participants in the flag-burning debate failed to
understand these simple points. Again and again, they confused the
physical and the symbolic in speaking of their desires to protect the
that many of the participants in the flag-burning debate failed to
understand these simple points. Again and again, they confused the
physical and the symbolic in speaking of their desires to protect the
'physical integrity' of the flag. But the flag is, in its deepest sense,
not physical. Like a word, it is a symbol, an idea. It cannot be
destroyed; it is fireproof. One can destroy only single manifestations,
iterations, or copies of the symbol."--106 Harv. L.Rev. at 133-135.
not physical. Like a word, it is a symbol, an idea. It cannot be
destroyed; it is fireproof. One can destroy only single manifestations,
iterations, or copies of the symbol."--106 Harv. L.Rev. at 133-135.
Now, think back to Jack Phillips and his custom wedding cakes in Masterpiece Cakeshop. Speech? Or non-speech? Is a wedding cake designed to express a message or an idea concerning an event and the persons participating in an event (to paraphrase Prof. Amar)? Or is it just food, no different from a cheeseburger or a pizza?
Suppose a state law criminalizes the printing of custom tee-shirts (or the creation of custom cakes) that depict the American flag in a manner that desecrates it as a symbol of national unity? Does this law restrict symbolic conduct or pure speech? Explain.
If you create tee-shirts (or cakes) desecrating the flag could the government compel you to create tee-shirts (or cakes) honoring the flag?
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