The defender general

The defender general, I just learned, is not a general at the Defense Department (okay, I didn’t think that would be it) — that’s the title of the head public defender in Vermont, presumably by analogy to attorney general. Those zany East Coasters, with their prothonotaries and their prochein amies and their defender generals.

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Ordinary investigative stop, or “extraordinary” and unlawful police tactics?

In addition to the Title VII sexual orientation case I just posted about, the Seventh Circuit will also hear en banc arguments tomorrow in United States v. Johnson, a criminal case that is the real reason I am going to the arguments tomorrow.

In a nutshell, police saw a vehicle stopped at a crosswalk, pulled two vehicles up next to it and shined bright lights on it, then saw a passenger trying to hide a gun which turned out to be unlawfully possessed by a felon. The question is whether there was a Fourth Amendment violation that justifies excluding some of the evidence. Judge Easterbrook’s opinion for the panel is short and covers a lot of ground, but near as I can tell there are three separate issues.

1: Was there reasonable suspicion/probable cause to initiate a stop? Under Wisconsin law, standing at a crosswalk is permissible “temporarily for the purpose of and while actually engaged in loading or unloading or in receiving or discharging passengers.” The car here had its motor running on a side street next to a liquor store, and might well have been there temporarily while somebody went to or from the store; it’s not clear the police officers observed the car long enough to even know whether this was true or not.

The panel‘s main response is that “officers need not negate all possible defenses. They can hand out tickets (or make arrests) and leave to the judicial process the question whether a defense applies.” It’s not clear to me whether this is technically a “defense” under Wisconsin law, but in any event I don’t have the same categorical intuition here. When police officers see a gun, can they make an arrest and then leave to the judicial process the question whether the holder had a gun permit? When police officers see a person on private property, can they arrest him and then leave to the judicial process the question whether he had the consent of the owner to be there (or was the owner)? Or do they instead need good reason to doubt that the gun-owner has a permit, or good reason to think that the person is a trespasser?

It seems right that officers need not always be sure that the activity falls into an unlawful category — that’s why it’s called “reasonable suspicion” or “probable cause,” not “proof.” But I am not sure that “defenses” are the right way to think about this. Robert Leider has an article arguing that the element/defense distinction should not do any work in this area, and I am inclined to think that’s right. Maybe there’s still probable cause here on the facts, but not because police didn’t need to think about this issue.

2: Was there even a stop in the first place? This seems to be a backup argument for the government to #1. Here’s the panel again:

Indeed, because the car was stopped in a public street, police did not need any reason at all to approach and look through the window. Officers do not violate the Fourth Amendment by viewing things they can see from a public vantage point where they have a right to be. It was the fact that the police approached the car that enabled them to see the gun. Everything else followed naturally (and legally). [Citations omitted.]

I’m inclined to think that this is wrong, for reasons related to The Positive Law Model of the Fourth Amendment. It sounds like the police did more than just walk up to the car; they surrounded it and shined really bright lights on it. I suspect that if a gang of ordinary citizens did the same thing to a private person on the streets of Milwaukee they would be committing a tort or minor crime. And while I might well be wrong about that (need research some Wisconsin law when I have time), if I’m right about that it suggests that the police were doing something more than what an ordinary person could do, and hence should have some justification for it.

3?: In any event, says the panel, the exclusionary rule should not apply:

We grant that the police did more than just stroll up: two squad cars, which bathed the parked car in bright light, implied that the occupants were not free to drive away. But as it happened the number of cars, and the use of lights, did not play a role in the causal sequence. (The cruisers’ lights may have played some role by supplementing the streetlamps, but Johnson does not contend that shining light into a car on a public street is unreasonable under the Fourth Amendment. See Dunn, 480 U.S. at 305, 107 S.Ct. 1134.) No one was in the driver’s seat, so the parked car could not drive away, no matter what the occupants wanted or thought they were free to do. A lone officer who ambled up amiably and shone a flashlight through the window would have seen everything needed to set up a lawful seizure of the gun. When the contested activity (here, the show of force through the use of two cars and bright lights) does not matter, it is also not a basis for suppressing evidence. When discovery would have occurred anyway, through proper means, the exclusionary rule would be overkill and must not be employed.

I’m least sure about the role of this argument in the Court’s opinion.

3a. Maybe it is being deployed to bolster #2: I.e., even if the police did engage in a stop, we should pretend that they did not because a non-stop would have had the same effect. This strikes me as an aggressive extension of the inevitable discovery doctrine, but it wouldn’t be the first aggressive extension of the inevitable discovery doctrine by the Seventh Circuit. (See U.S. v. Tejada and U.S. v. Cazares-Olivas for examples.)

3b. On the other hand, it might be that this is just meant to reject an independent argument that an otherwise-lawful stop can trigger the exclusionary rule if it is conducted in an offensive manner. This more modest version of #3 seems right to me (see Richard Re, Remedying the Fourth Amendment’s Reasonable Manner Requirement), but if so then #3 is probably not very important, since it’s just rejecting an ancillary argument.

So I am inclined to see #1 as the key issue, and if the government wins I hope it is on that basis rather than #2 or #3a.

Meanwhile, Judge Hamilton’s panel dissent makes both a relatively dramatic argument for limiting Supreme Court precedent and a more modest argument about the facts of the case. His dissent begins:

The police violated the Fourth Amendment rights of defendant Johnson and the four other occupants of the car. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.

The sole basis offered to justify this highly intrusive, even terrifying, “investigatory stop” was a suspected parking violation! The phenomenon of police seizures for “driving while black” has long been recognized. See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J.Crim. L. & Criminology 544 (1997). In this case, we seem to be taking the further step of enabling police seizures for “parking while black.”

Taking this further step is a mistake not required by existing law, and it runs contrary to the core Fourth Amendment standard of reasonableness. There are two alternate grounds for reversal here. The first and broader is that the rule allowing pretextual traffic stops under the combination of Terry v. Ohio, and Whren v. United States, should not be extended to mere parking violations where the legal sanction would be only a citation and fine. The second and narrower ground is that even if such an extension is recognized in theory, the police did not have a reasonable basis for this seizure.

There’s a lot to be said about the dissent too. (I am more inclined to the “second and narrower ground” than the “first and broader” one.) But I’ve already gone on too long, and I’m sure that all of these issues will be in play during the arguments tomorrow.

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Does federal law already ban discrimination on the basis of sexual orientation?

As you may already know, every couple of years Congress considers whether to pass the Employment Non-Discrimination Act, a federal statute that would ban employment discrimination on the basis of sexual orientation, much as discrimination on the basis of race, sex, etc. are already banned. So far, the legislation has not yet been enacted, and that was about where things stood when I was in law school, although since then one attempt, H.R. 3685, passed the House in 2007 by a 235-to-184 vote, and another, S. 815, passed the Senate in 2013 by a 64-to-32 vote.

So I have been somewhat intrigued in more recent years as an argument has emerged quite prominently in some federal courts that employment discrimination on the basis of sexual orientation is already illegal. The argument is that Title VII’s ban on sex discrimination also entails a ban on discrimination on the basis of sexual orientation, and it has gotten enough momentum that it is coming to the en banc U.S. Court of Appeals for the 7th Circuit on Wednesday in Hively v. Ivy Tech Community College.

While it may seem surprising for a decades-old statute to suddenly be discovered to have an important new implication like this, the argument has something going for it. As various folks have already argued (including co-blogger Ilya Somin) in various contexts, there is a sense in which sexual orientation can be seen as a form of formal sex discrimination. Plus there is a Supreme Court case, Price Waterhouse v. Hopkins, which holds that sex-based stereotyping is actionable under Title VII, and heteronormativity can be seen as a form of sex-based stereotyping. The Equal Employment Opportunity Commission has also recently endorsed this argument.

On the other hand, there is a less formal argument that this simply isn’t what Title VII was thought to cover when it was enacted — and that Congress’s repeated refusal to amend the statute since then confirms that the law has not yet changed. I sometimes think of this as the “but that can’t be right” principle of statutory interpretation, a lesser-known cousin of the absurdity doctrine. That principle brought us cases such as FDA v. Brown & Williamson (rejecting the argument that cigarettes are drug delivery devices) or perhaps some of the votes in Hayden v. Pataki (felon disenfranchisement laws permissible under Section 2 of the Voting Rights Act). I tend to have very textualist instincts and so to be dubious of these kinds of arguments, but they do have their place.

There’s much more to be said about this important issue, but I haven’t made up my own mind about it. But I’ll be at the en banc argument Wednesday and will report back if anything interesting happens.

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Will Baude is back!

I’m delighted to report that our old co-blogger Will Baude, who is a professor at the University of Chicago Law School, has returned to us. Will is the author of many articles on constitutional law, conflicts of laws, and statutory interpretation, as well as a former clerk for then-Judge Michael McConnell and for Chief Justice John Roberts; here are the titles of a few of his works, just so you can get a sense of his expertise:

  1. The Law of Interpretation, 130 Harv. L. Rev. ___ (forthcoming 2017) (with Stephen E. Sachs);
  2. The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. ___ (forthcoming 2017) (with Ryan Doerfler);
  3. Making Doctrinal Work More Rigorous: Lessons from Systematic Reviews, 84 U. Chi. L. Rev. ___ (forthcoming 2016) (with Adam S. Chilton & Anup Malani);
  4. The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1827 (2016) (with James Y. Stern);
  5. Is Originalism Our Law?, 116 Colum. L. Rev. 2349 (2015);
  6. Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738 (2013);
  7. Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012).

I very much look forward to Will’s posts.

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No, you couldn’t strip flag-burners of citizenship, even if flag-burning could be made a crime


But even if flag-burning weren’t protected by the First Amendment (and it is), you couldn’t strip people of their citizenship for it.

Let’s begin with the constitutional text, here from section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Once you have American citizenship, you have a constitutional entitlement to it. If you like your American citizenship, you can keep your American citizenship — and that’s with the Supreme Court’s guarantee, see Afroyim v. Rusk (1967):

There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.

(Special bonus in Afroyim: a cameo appearance by a Representative Van Trump in 1868, who said, among other things, “To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservative-minded statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government.”) In Vance v. Terrazas (1980), all the justices agreed with this principle.

Now, as with almost all things in law — and in life — there are some twists. Naturalized citizens can lose their citizenship if they procured their citizenship by lying on their citizenship applications; the premise there is that legal rights have traditionally been voided by fraud in procuring those rights. And citizens can voluntarily surrender their citizenship, just as people can generally waive many of their legal rights; this surrender can sometimes be inferred from conduct (such as voluntary service in an enemy nation’s army), if the government can show that the conduct was engaged in with the intent to surrender citizenship.

But flag-burning, whether or not it is intended to express contempt for the United States (and burning an American flag, like flying the Confederate flag, can have many possible intentions), is generally not accompanied by an intent to renounce U.S. citizenship, nor is it generally evidence of any such intent. A college student’s expression of contempt for the college’s administration, or the college as a whole, doesn’t mean an intent to drop out of the college — it’s entirely consistent with an intent to make the best of a bad situation, or even to take advantage of the benefits provided by an institution that one despises. One might consider such an attitude dishonorable, depending on the circumstances, but it’s very plausible that the contemptuous student would have that attitude. That is even more clearly so as to a citizen’s expression of contempt for the current American administration, or even America as a whole (if that’s the flag-burner’s attitude), given how costly surrender of citizenship would be, especially when one lacks another country that will take one in.

So even if flag-burning could be made criminal (and, I note again, it can’t be), the 14th Amendment protects the flag-burner’s citizenship, just as it protects other criminals’ citizenship.

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The surprising implications of the Microsoft/Ireland warrant case

The Justice Department filed a petition for rehearing last month in the Microsoft/Ireland warrant case. Although I’m skeptical that rehearing will be granted, the Justice Department’s petition includes some fascinating updates about the practical effect of the Second Circuit’s decision. I looked into the Justice Department’s allegations on my own, and I was able to get a better sense of what was happening. At the very least, it suggests that the Microsoft case is having some surprising implications. And in some cases, the result seems to be a significant mess.

The Second Circuit’s decision held that warrants for customer email are unenforceable when the provider opted to store emails on a server outside the United States. The statute only has extraterritorial effect, the Second Circuit reasoned, and that means it doesn’t apply to foreign-stored email. Treating the statute as a way to get email rather than a means of limiting access to email, the court ruled that the government couldn’t use a domestic warrant to compel the disclosure of emails stored abroad.

But here’s the twist. The court’s decision assumed that Internet providers knew where its customer emails were located and that emails could be accessed from those places. The Second Circuit’s opinion therefore left the government with some options. In particular, the government could pursue foreign legal process through Mutual Legal Assistance Treaties for email that was stored abroad.

It turns out that this assumption isn’t necessarily right. And that is creating some significant headaches.

Here’s what the Justice Department says in its petition for rehearing:

Unlike Microsoft, some major providers cannot easily determine where customer data is physically stored, and some store different parts of customer content data in different countries. Major U.S.-based providers like Google and Yahoo! store a customer’s email content across an ever-changing mix of facilities around the world. To the extent content is stored abroad by the provider at the moment the warrant is served, the Opinion has now placed it beyond the reach of a Section 2703 warrant, even when the account owner resides in the United States and the crime under investigation is entirely domestic. At least in the case of Google, the information is also currently beyond the reach of a Mutual Legal Assistance Treaty request or
any foreign law enforcement authority, because only Google’s U.S.-based employees can access customer email accounts, regardless of where they are stored; indeed, Google cannot reliably identify the particular foreign countries where a customer’s email content may be stored. Thus, critical evidence of crimes now rests entirely outside the reach of any law enforcement anywhere in the world, and the randomness of where within an intricate web of servers the requested content resides at a particular moment determines its accessibility to law enforcement.

The petition adds:

Major service providers like Google and Yahoo!, who store different pieces of information for a single customer account in various datacenters at the same time, and routinely move data around based on their own internal business practices, are now disclosing only those portions of customer accounts stored in the United States at the moment the warrant is served — even though, at least as to Google, the only employees who can access the entirety of a customer’s account, including those portions momentarily stored overseas, are located in the United States. Yahoo! has informed the Government that it will not even preserve data located outside the United States in response to a Section 2703 request, thereby creating a risk that data will be moved or deleted before the United States can seek assistance from a foreign jurisdiction, much less actually serve a warrant and secure the data. In addition, some providers are apparently unable to tell the Government, in response to Section 2703 disclosure orders, where particular data is stored or whether it is stored outside the United States, further frustrating law enforcement’s ability to access such data.

I reached out to various Internet providers to see whether the Justice Department’s claims are correct. While I wasn’t able to get on-the-record responses, I was able to patch together a picture from “on background” discussions. Here’s my best sense of what is happening.

First, the major domestic Internet providers aren’t treating the Second Circuit’s decision as just a decision from one circuit. They have all decided to treat the Second Circuit decision as the law in effect everywhere. Part of that is for a good practical reason: Internet communications nearly always cross state lines, so it’s hard to have different rules for different circuits. And part of it is to put the burden on the government if it wants to challenge the providers’ policies. The Justice Department can bring a legal challenge in a different circuit where the Microsoft decision is not binding, but the department has to go along with the providers’ nationwide adoption of the Second Circuit’s decision unless or until that happens.

Second, the Justice Department’s factual assertions in its petition for rehearing are basically correct. The Microsoft case has revealed a significant division among service providers in terms of how their network architectures function. Some providers make a point of figuring out the country of origin of each user, and they try to store user emails in that country or region. Other providers don’t. Some providers know in what country a particular user’s email will be located, and that answer is reasonably stable over time. Other providers don’t, and it isn’t. Some providers can access email stored abroad from wherever it is located. Other providers can’t.

These differences didn’t matter before the Second Circuit’s decision because domestic providers complied with domestic search warrants regardless of data territoriality. Microsoft then challenged compliance with domestic search warrants in a case where the location of the emails was known (Ireland) and the emails could be accessed from that location. The court’s opinion assumed that technology was in place. And the decision is now working pretty much as expected for providers with that network architecture.

In particular, the court’s opinion is creating a sensible structure for providers that store contents of communications in the country or region where individual users preside. No system is perfect. But for providers that aim for data localization — putting the data in the country or region of its users — domestic law enforcement can generally use warrants to get the emails of people in the United States but need to use mutual legal assistance to get emails of those abroad. That’s a sensible result.

On the other hand, the Second Circuit’s decision has created a mess with some providers that have different network architectures. At least one major provider has a very fluid approach to data location. Email contents go wherever is easiest for the network at that moment. When a warrant comes in, the provider can query its network to find out which contents from the account are located on servers in the United States at that instant. But the mix of contents inside and outside the United States at any given time is impossible to predict. Even individual email messages may be split up in different countries. For example, a particular email message might be on a server in the United States while its associated attachment is on a server abroad.

To make matters more complicated, the network is structured at one major provider so that only employees from inside the United States can query it. This means that if the government wants to get access to the contents of the account, there is no apparent way to get access to the subset of the contents that are foreign-stored at the time legal process is executed.

This is a pretty surprising result. If you’re an FBI agent and you get a search warrant for a specific set of emails in a domestic suspect’s account, the provider will send you only the subset of responsive emails that happen to be in the United States when the provider pressed the button to retrieve the account records as part of the warrant execution. The rest is out of reach, even with foreign legal assistance, as there is no one abroad to query the network pursuant to foreign legal process.

In the run-up to the Second Circuit’s decision, a lot of folks pointed to the odd results that might follow from ruling for Microsoft. But here’s what I (and others) missed: I didn’t expect that major domestic providers would respond to a ruling that they can’t be compelled to disclose foreign-stored emails pursuant to a warrant by flatly refusing to disclose foreign-stored contents voluntarily when the target was domestic and the only reason that particular e-mail was foreign-stored at that instant was the fluid nature of the network’s architecture.

I didn’t expect that in part because domestic providers are still permitted to disclose the foreign-stored contents of communications under the Second Circuit’s decision. Providers are not required to make those disclosures. But they can if they want to, because the statute’s coverage acts as both a sword and a shield. On one hand, the statute is a sword that (at least as the Second Circuit reads it) forces providers to comply with legal process. On the other hand, the statute is a shield because it limits voluntary disclosure. The two go together. If a foreign-stored email is out of reach of the compelled disclosure rules, it also is out of reach of the voluntary disclosure limitations.

This means that a domestic provider with a network that moves contents around all the time can still disclose the contents of the account of a domestic person that happen to be domestic the moment the warrant comes in under the warrant while they can disclose the contents that happen to be stored abroad at that moment voluntarily. I assumed (perhaps naively) that major domestic providers would do that. But apparently that’s not happening.

Why not? One possibility is that the politics of the moment make the most pro-privacy approach the best course, even if it leads to weird results. Privacy is big business right now, especially in Europe. Perhaps providers figure that the safest political course is not to turn over what can’t be forcibly compelled.

Another possibility, albeit a remote one, is a concern that voluntary disclosure might raise Fourth Amendment problems. The provider acting pursuant to legal process is a state actor, the Second Circuit’s opinion says, and warrants can be executed only domestically. Perhaps providers fear that voluntary compliance raises Fourth Amendment issues.

But if that’s a concern, I don’t see it as a realistic one. First, the warrant requirement doesn’t apply overseas. That means that the only Fourth Amendment limit is reasonableness. Although the standards of foreign-search reasonableness are murky, I would think that relying on a judicial finding of probable cause and particularity sufficient to issue a traditional search warrant (if the data were inside the United States) is reasonable. The sign-off of a domestic warrant is generally considered the gold standard for reasonableness even for foreign searches, see United States v. Barona, 56 F.3d 1087, 1101-03 (9th Cir. 1995) (Reinhardt, dissenting), and I would think that would suffice. Second, because the disclosure is voluntary, and not required by court order, it’s not at all clear that the Fourth Amendment would apply in the first place under the state action doctrine.

I wonder whether the Justice Department will go into court to push this issue. In particular, it’s an open question whether the department can get the full contents of domestic target accounts by issuing a warrant and a subpoena simultaneously. The warrant would be for the domestically-stored parts of the account, while the subpoena would be for the foreign-stored parts of the account. If the Justice Department tries this and providers object, you might see litigation on whether or in what circumstances the subpoena can be enforced.

Alternatively, all of this seems like an ideal subject for congressional attention. Stay tuned.

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President-elect Trump calls for flag-burning ban

A demonstrator drags a burning American flag through the streets during a protest against President-elect Donald Trump in Oakland, Calif., on Nov. 10. (Peter DaSilva/European Pressphoto Agency)


But the Supreme Court held that flag-burning is constitutionally protected symbolic expression (in an opinion joined by Justice Antonin Scalia), and the vote was 5-4 when the matter arose in 1989 and 1990; I suspect it would be much more strongly in favor of protection today. I also don’t think that the conservative justices will be swayed by the argument that “freedom of speech” means just speech, and not symbolism; as I discussed in “Symbolic Expression and the Original Meaning of the First Amendment,” the Framing-era legal system viewed symbolic expression as tantamount to verbal expression — here’s an excerpt from that article:

The First Amendment protects “speech” and “press,” not “expression”: so some argue, condemning the Court’s symbolic expression cases. Judge Robert Bork writes that “burning a flag is not speech and should not fall under First Amendment protection.” Senators Dianne Feinstein and Orrin Hatch agree, as do many journalists, activists, and commentators. Others similarly reason that the First Amendment doesn’t protect the wearing of symbolic armbands or Ku Klux Klan regalia, the symbolic refusal to salute a flag, or the burning of a cross. Judge Richard Posner concludes that “[n]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech,” partly because “[b]urning a flag is not even ‘speech’ in a literal sense.”

The Supreme Court has disagreed with the Bork/Hatch/Feinstein position. “[I]nherently expressive” or “conventionally expressive” symbolic expression, the Court has concluded, is basically functionally identical to expression through words and should thus be treated the same: the two convey messages through much the same mental mechanism, with much the same effects and for much the same speaker purposes. But are the Court’s critics right, at least if one focuses on the text and original meaning of the First Amendment? Is the Court’s doctrine here vulnerable to reversal given the Court’s growing turn to original meaning analysis?

Even conservatives on the Court and elsewhere have usually shown little interest in revisiting the Court’s general free speech/free press precedents, which now consist of hundreds of cases, or in adopting some Framers’ attitudes towards seditious libel or even offensive public speech generally. But returning the definition of “speech” and “press” to its original meaning might be feasible, and the call to return to this definition deserves to be considered.

This Essay argues that the Court has had it right all along, and that the Court’s critics are mistaken on originalist grounds. The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning:

1. Late-1700s and early-1800s courts treated symbolic expression and verbal expression as functionally equivalent when it came to speech restrictions, such as libel law, obscenity law, and blasphemy law. Symbolic expression, for instance, could be just as libelous as verbal expression.

2. This logic and tradition of equivalence extended to speech protections — a term I will use as shorthand for “free speech or free press protections” — as well as to speech restrictions. Paintings, liberty poles, and other symbolic expression (even outside the “press”) appeared to be no less and no more protected than spoken and printed words. In fact, the first American court decision striking down a government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.

3. And this equivalence of symbolic and verbal expression fits well with the original meaning of the First Amendment. Leading commentators St. George Tucker, Chancellor Kent, and Justice Joseph Story recognized that “the freedom of speech, or of the press” was tantamount to Madison’s original draft of the clause: the “right to speak, to write, or to publish.” And the term “to publish” included not just publishing printed works, but also publicly communicating symbolic expression, such as paintings, effigies, and processions.

The treatment of symbolic expression as equivalent with verbal expression makes historical sense as well as logical sense, because Framing-era English and American political culture was rich with symbolic expression, used interchangeably with words. A leading English holiday, Guy Fawkes’ Day (called Pope Day in the colonies), revolved around processions and burning effigies. In the first major protest against the Stamp Act, colonists placed on a “Liberty Tree” (in that case, a large elm) various effigies, including a “devil … peep[ing] out of a boot — a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act”; “[t]he effigies were then paraded around town, beheaded, and burned.” John Jay, coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, reportedly “wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold” — a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors.

English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is actually toasting the “King over the Water,” which is to say the Pretender, who lived in exile in France. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: forty-five toasts — representing Issue 45 of Wilkes’ North Briton, which got him prosecuted for seditious libel and made him a star — were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was “eaten from plates marked ‘No. 45’”; the Liberty Tree in Boston had its branches “thinned out so as to number forty-five.” Literal speech (the words of the toasts) was freely mixed with symbolic expression. [I only have the color version of the funeral procession picture; can you convert it into black and white as crisply as possible, or should I try to get our tech people to do it? Thanks!]

Likewise, 1790s Americans wore colored cockades in their hats to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung to mock the other side’s cockades. Some conducted mock funerals for the other side’s cockades (see the picture above). Others raised liberty poles, or burned “Liberty or Death” flags stripped from their adversaries’ liberty poles. Yet others planned an elaborate pantomime criticizing their Congressman, including the burning of a British flag, preceded by displays of the French and American flags crowned with liberty caps, the British flag flying upside down, and a gallows.

Colonists conducted funeral processions for liberty to protest the Stamp Act. After the Revolution, Americans burned copies of the Sedition Act and other federal laws, as well as copies of opponents’ publications that they saw as libelous (echoing the English legal practice of having libels be burned by the hangman). It is understandable that a culture that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression.

Likewise, it makes sense that the Supreme Court’s protection of symbolic expression dates back to the very first Supreme Court decision striking down any government action on free speech or free press grounds. The Court in that 1931 case casually assumed that symbolic expression was as protected as verbal expression, and treated the display of a red flag as legally tantamount to antigovernment speech. But its assumption was consistent with the First Amendment’s original meaning: the equivalence of symbolic expression and verbal expression has been part of American law since the Framing era.

Of course, the court’s flag-burning decisions could be overturned by a constitutional amendment; for one reason why I think that would be a very bad idea — and would jeopardize a great deal more expression than just flag-burning — see here.

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