Cassie McOmber

Civil Rights and Liberties:

Symbolic Speech
Politics 1100

Jamie Nelson
April 22nd 2016
1

America is globally known as the land of freedom, something that many of its citizens are
proud of. The ability to express yourself in the ways that you feel are most representative of your
beliefs and feelings is an appealing concept. There are many ways to express beliefs, and in
America many of them are protected by the constitution. In the first several amendments of the
constitution there are rights and liberties that are specific to expressing one's beliefs, Freedom of
religion being one of them. But one that has been called into question most recently is an
America's ability to use Symbolic speech to express themselves. Symbolic speech has an
interesting history that started in 1931 with the case of Stromberg vs. California, a few cases
followed that changed the court's view on Symbolic speech as a right or rather a liberty, the most
recent example of Symbolic speech is the controversy over the display of the confederate flag.
To understand what symbolic speech is we have to look at how people express
themselves in ways that are not spoken or written. Maybe believe that those are the only true
ways to express oneself but that is far from the truth. Humans have tendencies to differ greatly
from each other, we may try to blend in with others but we are all different and so people use
different forms of speech to communicate. Many people use the way they dress as a way of
communicating. Though many do not see the clothing they wear as a form of speech it is actually
quite a powerful form of speech. Often times dress is the first impression of character or mood.
Symbolic speech can be defined as A representation of one's beliefs or messages in the form of
nonverbal communication. (Author: Unknown, Symbolic Speech Explained, published in 2015)
Any form of communication that is not verbal or written can be seen as symbolic. An example
being bumper stickers or tattoos. Those examples were not something that was really used in the

early 1900s though, which is when the topic of symbolic speech really started to gain attention.
At that time in history a more popular form of expression was the display of a flag.

The first recorded case of symbolic speech being a problem confronted by the
government was Stromberg vs. California. On May 18th 1931 the case of Stromberg vs.
California was ruled in favor of California. Stromberg was a woman who was known to oppose
strong government, not something that was uncommon in that time period. Stromberg had been
displaying a red flag in her protest of organized government, She was displaying it in a public
place, as a sign, symbol or emblem of opposition to organized government" (Chief Justice
Hughes, Stromberg vs. California, published: May 18th 1931) The red flag being displayed was at
a summer camp and it was a replica of the soviet union flag, or that was what is was made to
represent, to show class-consciousness, the solidarity of the workers and the theory that the
workers of the world are of one blood and brothers all (Author: Unknown, Stromberg vs.
California Significance, Published and updated in 2016) a commonly Communistic idea of
thinking.

California moved against her because her goal was to incite an anarchistic type of
response from those that saw the flag. The court moved that this kind of display would not be
allowed because it is not safe. At the time California had a law called the red-flag law which
prohibited the display of a red flag to incite hate towards the government. Though California
won against Stromberg she later brought her case up to the Supreme Court who ruled that
Californias red law had no proof of clear and present danger and ruled in invalid. This case is
not really one that is thought of when talking about symbolic speech because the court made no

mention of it in their ruling but it is thought to have changed how the 14th and 1st amendments are
seen when it comes to symbolic speech.

Symbolic speech was put on the back burner for the next 30 years or so until in 1968
there was another important case presented to the courts. United States vs. OBrien was a
monumental court case that really brought Symbolic speech into the lime light. It all started
when OBrien burned his draft card hoping to garner support and visibility to his antiwar view
and protests. He was arrested for his protest and later brought up his case to the Supreme Court,
who ruled it within their rights to arrest him for his form of protest. This case changed history,
though symbolic speech is more of a liberty than a right it was still protected by the constitution.
It is a liberty because the government doesnt have to take action but rather let people do what
they will to protest as long as it does not present a clear and present danger. In this case the
Supreme Court found that the law prohibiting the burning or destruction of draft cards was
within the governments power to enact. Justice Warren stated that a government regulation is
sufficiently justified if it is within the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First Amendment
freedoms is not greater than is essential to the furtherance of that interest. (Justice Warren,
United States vs. OBrien, May 26th 1968). This ruling has made it possible for those that wish to
do so can burn the American flag, or to protest certain forms of government within reason, but it
has also made it clear that the government does have the last say when it comes to certain forms
of protest.

Today the most recent form of symbolic speech that has encountered a lot of controversy
is the displaying of confederate flags. The symbol itself is not offensive in nature but it does
come from a dark part of our history. To really understand this issue we have to take many things
into account, first was the ruling of Strombergs case, it was decided that the display of a flag
such as a red flag was not inherently a clear and present danger. But next we have to consider the
ruling of OBrien where the court said that the government has the right to enforce a law that is
not overstepping the liberty of symbolic speech. But there are also other things to take into
consideration, we have historical things that need to be thought of when we think about this
subject. First is the example of the swastika. A symbol used in Nazi Germany that now carries a
sense of fear along with any mention of it. But the thing is that the Swastika was not created by
Nazis no it was in fact stolen by Hitler from the Buddhists and Hindus.

The symbol of the swastika in Sanskrit is actually the symbol of auspiciousness. It has
been used in many cultures for over 12,000 years (JohnBlack, The symbol of the swastika and its
12,000 year old history, February 6th, 2014) and ever since it was tainted by the use of the Nazis
people in those cultures have apologized for the negative feelings and memories brought up by
the symbol, when people visit places where that symbol is displayed these people apologize and
warn tourists ahead of time, they have actually removed the symbol for everyday use. That was
their response to the tainting of an ancient symbol that has been used in their culture for
thousands of years. Now back to the topic of the Confederate flag. It is understandable that many
people have negative feelings towards the flag it symbolizes a time of horror for many of the
citizens who live in America today.

The confederate flag is a symbol of rebellion and slavery and it is something that offends
a lot of people, yet people still choose to display it, their argument is that it is a big part of their
history and culture, that it is their right to display the flag. But the question is, does their display
of the confederate flag present a clear and present danger? Some say yes, and some say no. Both
sides have many valid arguments but the most impressive argument is one brought up by people
who support the banning of the Confederate flag. They say that it is similar to the burning of a
cross, which is considered a threat by some, not all Christians or Catholics will see it as a threat
but it can be seen as one by some, and so it is illegal and not protected by freedom of symbolic
speech. The cross burning is similar to the confederate flag, it is a symbol of slavery and support
of slavery and such can be seen as a threat to a large group of people, some might not see it as a
threat but there are those that do, just like with the cross. This debate has not yet been brought up
to the courts and so does not have an official ruling, but it is interesting to think about. Is it a
liberty of the American people to be able to display the confederate flag?

In Conclusion, the U.S. offers us many protections under the constitution in the form of
rights and liberties. One of our liberties is the ability to express oneself through symbolic speech.
The topic was first brought to the publics eye in the 1930s where they were given the right to
display red flags by the Supreme Court, which was a huge step forward for symbolic speech.
Next we had the case against the states for the right to burn draft cards, which was denied by the
Courts as it was within government powers to enforce a law that does not infringe on free
speech. And now today we have the debate on whether or not it is okay to display the
confederate flag. The laws surrounding Symbolic speech are not clear and clean cut but they are
there. The U.S. government offers as much opportunity to express individual beliefs as they can,

and it is something that is not appreciated many people. Symbolic speech is a liberty that many
use but dont appreciate.

Citation
1. Author: Unknown, Symbolic Speech Explained, Published in 2015

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2155&context=flr
2. Author: Chief Justice Hughes, Stromberg vs. California, Published 2016
https://www.law.cornell.edu/supremecourt/text/283/359
3. Author: Unknown, Stromberg vs. California- Significance, Published and edited in 2016
http://law.jrank.org/pages/23494/Stromberg-v-California-Significance.html
4. Author: Unknown, United States v. O'Brien. Oyez, Retrieved April 22nd, 2016. Judge
Warren 1968.
https://www.oyez.org/cases/1967/232
5. Author: JohnBlack, The Symbol of the Swastika and its 12,000 year old History, Published
February 6th 2014.
http://www.ancient-origins.net/myths-legends/symbol-swastika-and-its-12000-year-oldhistory-001312