Symbolic speech is protected by law in the United States as a form of free speech. The Constitution does not address it, but regulations must be value-neutral and focused on behavior. The American Civil Liberties Union helps defend the right to symbolic speech, and there have been cases involving children in school. Restrictions must be intended to promote public safety and order.
Symbolic speech is non-verbal communication that is intended to convey a belief, concept, or idea. The United States Supreme Court has ruled on multiple occasions that symbolic speech is a form of free speech and that, as such, it is considered protected by law. The classic example of symbolic discourse raised in many discussions on the subject is the burning flag. Several Supreme Court cases have struck down laws against flag burning, arguing that they violate free speech rights guaranteed by the United States Constitution.
Symbolic discourse itself is not addressed or discussed in the Constitution. Legal researchers theorized that this could be because the modes of communication were primarily verbal at the time of this writing. The protection of freedom of expression in the form of speech, writing and freedom of the press would have been considered important, but the drafters of the Constitution may not have thought about non-verbal expressions such as artwork, use of symbols and so on.
By law, violating symbolic speech is not legal. Regulations involving activities considered a form of symbolic speech must be value neutral and focused on behavior rather than on the idea expressed. For example, laws prohibiting the burning of draft papers were upheld because although burning a draft paper is a form of political speech, it also interferes with the administration of the draft, thus making the behavior legal. However, if someone burned a copy of a draft card or a token draft card, this business would be protected.
Numerous examples of cases involving symbolic speech can be seen at various points in American history. In these cases, as a general rule, it must be demonstrated that the restrictions were intended to moderate behavior with the aim of promoting public safety and order. The prohibition of wearing bracelets with a symbol would not be accepted in court with the argument that a bracelet does not pose a threat to public order, safety and health. On the other hand, setting fire to a government building would not be safe because, while it may be a form of political commentary, it poses a threat to public safety.
Organizations like the American Civil Liberties Union (ACLU) help Americans protect and defend their right to symbolic speech. Lawyers who work for these organizations work with their clients to combat restrictions on behavior that is considered symbolic speech. Some major lawsuits involving symbolic speech have involved children in school; Despite the fact that schools are often given a lot of leeway when it comes to banning behaviors, some students have successfully won cases arguing that their behavior posed no threat to general order, safety, or health. These cases affirmed the right of students to sit during the Pledge of Allegiance, to wear protest stickers or bracelets, and to produce artwork with political messages.
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