Free speech — and the First Amendment — are major topics of debate in 2022. From former president Barack Obama labeling himself “pretty close to a First Amendment absolutist,” to debates over whether Florida’s legislature punished Disney for exercising free speech by revoking the company’s special improvement district, to conservative howls about censorship on social media, it seems that everyone has a take.
Yet, on one topic, our legal tradition is very clear: When speech verges into violence and destruction, the Constitution does not protect it and the government can punish people for expressing political sentiments. That is relevant to our debates today given how some on the right continue to defend the Jan. 6, 2021, insurrection as an acceptable political protest and to call those arrested and charged in conjunction with it “political prisoners.” In February, the Republican National Committee (RNC) even passed a resolution calling the Jan. 6 protests “legitimate political discourse” — though amid backlash, RNC Chair Ronna McDaniel clarified that the phrase referred only to nonviolent demonstrators.
But while the Supreme Court has chastised Congress as overstepping in its attempt to regulate the Internet and sometimes offered murky direction on whether and when fighting words are punishable, it has made clear that the power to punish violent political acts is unambiguous.
American courts have long accepted the concept that people can disseminate ideas by means other than speech and writing. In 1931, in Stromberg v. California, the Supreme Court implicitly recognized that nonverbal communication or symbolic speech, in this case flying a red flag interpreted as a symbol of the Soviet Union, conveyed a point of view. Twelve years later, in West Virginia Board of Education v. Barnette, the court specifically acknowledged that nonverbal speech was a method of messaging often worthy of First Amendment protection. In that seminal case, the court upheld the right of students to refuse to salute the flag and recite the Pledge of Allegiance.
The protest movements of the 1960s, especially the civil rights movement, forced the court to lay out a clearer vision of when exactly the First Amendment shielded such conduct intended to communicate a political message from government penalties. The inclination of Southern lawmen to arrest peaceful civil rights demonstrators — and of judges and juries to convict them — provided ample opportunity to address the topic and differentiate between protected actions and where behavior crossed a line and the government could punish someone for it.
The court confronted four landmark cases during this tumultuous decade. Two of them resulted from the arrest and prosecution of participants in sit-in campaigns that occurred as part of the civil rights movement. In Garner v. Louisiana, decided in 1961, the court reversed the convictions of Black people who refused to vacate seats at lunch counters reserved for White patrons when ordered to do so. At no point did the participants engage in aggressive conduct; much to the contrary, the sit-ins were orderly and peaceful.
Justice John Marshall Harlan II wrote a noteworthy concurring opinion that recognized the expressive nature of symbolic speech. Harlan observed that the sit-in participants clearly aimed to promote public discussion about continued segregation in Louisiana through their action. They differed little from a speaker on a street-corner soapbox — the participants spoke with the same clarity and fluency as if they were expressing themselves verbally. The fact that they instead communicated through symbolic speech did not create any public disturbance, leaving their behavior clearly within the realm of conduct that the drafters of the First Amendment aimed to protect.
Five years later, the court decided Brown v. Louisiana — making the principle laid out in Garner even more explicit. The majority opinion by Justice Abe Fortas labeled the silent sit-in as “a monument of protest,” which enjoyed full constitutional protection.
The year before Brown, civil rights activism in Louisiana that raised constitutional questions had produced another case for the Supreme Court: Cox v. Louisiana. In that case, a civil rights advocate was arrested, prosecuted and convicted of leading a group of about 2,000 people in a march in Baton Rouge. The court reversed the conviction but stipulated that, unlike a peaceful sit-in, when ideas were inextricably intermingled with action such as patrolling, marching and picketing, the First Amendment did not provide the same level of protection from prosecution that it did for pure speech. The court cautioned that while the rights of free speech and assembly are central to a functioning democracy, that did not mean that those who sought to express themselves could do so in any public place and at any time.
Most important, the court explained that whether the First Amendment safeguarded actions and messages conveyed by a manner other than pure speech did not turn on the content of the message. In fact, the First Amendment did its most important work when it protected speakers who asserted loathsome or unpopular sentiments. It was not the opinions of the powerful and the strong that needed sanctuary, but rather those of the weak and the despised. Instead, the crucial test was whether the method of conveying an idea undermined the government’s responsibility to the public or public safety.
In 1968, in United States v. O’Brien, the justices put muscle behind the constitutional vision laid out in Cox and further defined its parameters. In 1966, 19-year-old David Paul O’Brien burned his draft card — a federal crime — to denounce the war in Vietnam. Even as it upheld O’Brien’s conviction, the court reaffirmed that symbolic expression was worthy of First Amendment analysis. Further, the justices directed that when conduct was infused with messaging, judges must examine it to determine whether and how the First Amendment was implicated. Finally, the court offered up a standard for conducting that analysis: Did the government, in the performance of its constitutional duties, have a substantial or compelling interest in regulating the behavior at issue, unrelated to the asserted viewpoint?
In O’Brien’s case, the court explained that the government’s responsibility to raise and support an army was an essential element of its obligation to the citizenry. The fact that O’Brien sought to transform the action of burning a draft card into a message did not convert the criminal act into protected speech. According to the court, O’Brien was not punished for his antiwar opinion; rather, he was punished for interfering with the draft and the ability of the government to field a military. His declaration of opposition to the war would have been protected had O’Brien chosen a noncriminal means of communication.
This basic framework of First Amendment analysis has remained in place over the ensuing five decades. And while identifying what precisely constitutes a compelling government interest can be blurry at times, the analysis is quite simple when it comes to violent actions — like the storming of the Capitol, which illegally impeded the counting of electoral votes, put the lives of countless police officers, staffers, journalists and members of Congress at risk and landed people in the hospital. The government can ban such forms of symbolic, but violent, speech.
Trump Republicans have the right to hold rallies claiming that the 2020 election was stolen, to threaten political retaliation and censure members of their own party who dissent from this viewpoint and to glorify participants in the Jan. 6 insurrection as patriots. All of this is protected speech — even if they speak no actual words. But the assertion that, because it was intended as a political statement, the breach of the Capitol with weapons in hand was protected speech is wrong and flies in the face of how the Supreme Court has interpreted the Constitution for decades. While political messaging enjoys the strongest constitutional safeguards, it loses that shield when the messaging verges into violence — because that undermines public safety and puts others at risk.
Similarly, political messaging at a rally that incites violence or angry outbursts at a school board meeting or on social media that includes threats that reasonably put the target in fear of their life or liberty loses any constitutional armor. While the boundaries of our First Amendment are vast, they are not limitless.
