Symbolic speech is nonverbal communication which 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 under the law. The classic example of symbolic speech brought up in many discussions of the topic is flag burning. Several Supreme Court cases have struck down laws against flag burning, arguing that they infringe upon the free speech rights guaranteed under the United States Constitution.
Symbolic speech itself is not addressed or discussed in the Constitution. Legal researchers have theorized that this may be because modes of communication were primarily verbal at the time this document was written. Protecting freedom of expression in the form of spoken word, writing, and freedom of the press would have been viewed as important, but the drafters of the Constitution might not have thought about nonverbal expressions such as works of art, the wearing of symbols, and so forth.
By law, infringing upon symbolic speech is not legal. Regulations which pertain to activities which are considered a form of symbolic speech must be value neutral and focused on the behavior, rather than the idea expressed. For example, laws banning burning of draft cards were upheld because although burning a draft card is a form of political speech, it also interferes with the administration of the draft, thereby making it legal to legislate the behavior. Were someone to burn a copy of a draft card or a symbolic draft card, however, this activity 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 restrictions were intended to moderate behavior with the goals of promoting public safety and order. Banning the wearing of armbands with a symbol would not be upheld in court under the argument that an armband does not pose a threat to public order, safety, and health. On the other hand, setting fire to a government building would not be protected because while it might 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 fight restrictions on behavior which is considered symbolic speech. Some notable lawsuits involving symbolic speech have involved children in school; despite the fact that schools are often given broad leeway when it comes to prohibiting behaviors, some students have successfully won cases by arguing that their behavior posed no threat to general order, safety, and health. These cases have affirmed the rights of students to sit during the Pledge of Allegiance, to wear protest stickers or armbands, and to produce works of art with political messages.
