74 PART oNE • THE AMERiCAN sYsTEM
Symbolic Speech
Expression made through
articles of clothing,
gestures, movements, and
other forms of nonverbal
communication.One of the most famous cases concerning prior restraint was
New York Times v. United States^12 (1971), the so-called Pentagon
Papers case. The Times and the Washington Post were about to
publish the Pentagon Papers, an elaborate secret history of the
U.S. government’s involvement in the Vietnam War (1965–1975).
The secret documents had been obtained illegally by a disillu-
sioned former Pentagon official. The government wanted a court
order to bar publication of the documents, arguing that national
security was threatened and that the documents had been sto-
len. The newspapers argued that the public had a right to know
the information contained in the papers and that the press had
the right to inform the public. The Supreme Court ruled six to
three in favor of the newspapers’ right to publish the informa-
tion. This case affirmed the no-prior-restraint doctrine.The Protection of Symbolic Speech
Not all expression is in words or in writing. Articles of clothing,
gestures, movements, and other forms of nonverbal expressive
conduct are considered symbolic speech. Such speech is given
substantial protection today by our courts. For example, in a
landmark decision issued in 1969, Tinker v. Des Moines School
District,^13 the United States Supreme Court held that the wearing
of black armbands by students in protest against the Vietnam
War was a form of speech protected by the First Amendment.Flag burning. In 1989, the Supreme Court ruled that state
laws that prohibited the burning of the American flag as part of
a peaceful protest also violated the freedom of expression pro-
tected by the First Amendment.^14 Congress responded by passing
the Flag Protection Act of 1989, which was ruled unconstitu-
tional by the Supreme Court in 1990. Congress and President
George H. W. Bush immediately pledged to work for a constitu-
tional amendment to “protect our flag”—an effort that has yet
to be successful.Cross burning. In 2003, the Supreme Court concluded in a
Virginia case that a state, consistent with the First Amendment,
may ban cross burnings carried out with the intent to intimidate.
The Court reasoned that historically, cross burning was a sign of
impending violence, and a state has the right to ban threats of violence. The Court also
ruled, however, that the state must prove intimidation and cannot infer it from the cross
burnings themselves. In an impassioned dissent, Justice Clarence Thomas, who is African
American and usually one of the Court’s most conservative members, argued that cross
burnings should be automatic evidence of intent to intimidate.^1512. 403 U.S. 713 (1971).
13. 393 U.S. 503 (1969).
- Texas v. Johnson, 488 U.S. 884 (1989).
- Virginia v. Black, 538 U.S. 343 (2003).
The national Christmas tree and the
national Hanukkah menorah share space on the
Ellipse in Washington, D.C. Why is this joint display
constitutional? (Tim Sloan/AFP/Getty Images)9781285436388_04_ch04_066-091.indd 74 10/15/13 8:56 AM
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