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Symbolic Expression

Not all forms of self-expression involve words. The nod of a head, the wave of a hand, and the wink of an eye each communicate something without resort to language. Other forms of non-verbal expression communicate powerful symbolic messages. The television image of the defenseless Chinese student who faced down a line of tanks during the 1989 democracy protests near Tiananmen Square in China is one example of symbolic expression that will be forever seared into the memories of viewers. The picture of three New York City firefighters raising the American flag amid the rubble and ruins at the World Trade Center following the terrorist attacks of September 11, 2001, is another powerful example of symbolic expression.

The First Amendment does not protect all symbolic expression. If an individual intends to communicate a specific message by symbolic expression under circumstances in which the audience is likely to understand its meaning, the government may not regulate that expression unless the regulation serves a significant societal interest unrelated to suppressing the speaker’s message. Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). Applying this standard, the U.S. Supreme Court reversed the conviction of a person who burned the American flag in protest over the policies of President Ronald Reagan (Texas v. Johnson, 491 U.S. 397,109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)), and invalidated the suspension of a high school student who wore a black arm-band in protest of the Vietnam War (Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed.2d 731 (1969)). To the contrary, however, the Court has upheld federal legislation that prohibited the burning of draft cards. United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). Of the governmental interests asserted in these three cases, maintaining the integrity of the selective service system was the only interest of sufficient weight to overcome the First Amendment right to engage in evocative symbolic expression.

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