- Symbolic speech examples include leafleting, picketing,
demonstrating, marching, speaking publicly, flag burning, displaying t-shirts,
armbands, banners and placards, sit-ins, as well as camping out in public
- With some exceptions, all have First Amendment protection.
Numerous Supreme Court decisions addressed the issue. Some agreed. Others
- For example, in Hague v. Committee for Industrial Organization
(1939), Justice Owen Roberts expressed the Court's plurality opinion, saying:
- "Wherever the title of streets and parks may rest,
they have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions."
- "Such use of the streets and public places has from
ancient times, been a part of the privileges, immunities, rights, and liberties
- While most Justices didn't concur, subsequent opinions
endorsed symbolic speech rights. In Schneider v. State (1939), the Court
ruled that city ordinances to keep streets clean and presentable didn't
justify prohibiting literature and leaflet distribution to willing recipients.
- In Kunz v. New York (1951), the Court held that mandating
permits to speak publicly on religious issues was unconstitutional.
- In Shuttlesworth v. City of Birmingham (1969), the Court
ruled for petitioner Shuttlesworth's right to lead orderly 1963 civil rights
marches. Doing so violated a city ordinance requiring permit permission.
Calling it unconstitutional, the decision stated it was denied to censor
ideas, not obstruct traffic.
- Various High Court decisions ruled that speech, including
camping out in public places, is subject to time, place and manner regulations
such as traffic control. However, protected speech must have alternate
ways to communicate without undo restrictions.
- For example, in Clark v. CCNV, the Court ruled for the
National Parks Service's right to prohibit camping out overnight because
doing so complied with reasonable time, place and manner restrictions of
- The Court said incidental speech restrictions are constitutional
provided they're not "greater than necessary to further a substantial
- However, the Court stressed that the restrictions must
be "narrowly tailored." That requirement is satisfied as long
as it "promotes a substantial governmental interest that would be
achieved less effectively absent the regulation."
- Imposed restrictions must also be content neutral.
- Three categories of public property were defined:
- streets and parks (considered a public forum), traditionally
used for public assembly and debate; government may not prohibit communicative
activity therein; moreover, content-neutral time, place, and manner restrictions
must be justified to serve some legitimate interest;
- limited public forum space for use by certain groups,
provided legitimate discriminatory limitations are justified by compelling
government interests; and
- government "may reserve a forum for its intended
purposes, communicative or otherwise, as long as the regulation on speech
is reasonable and not an effort to suppress expression merely because public
officials oppose the speaker's view."
- According to New York Mayor Michael Bloomberg, "The
Constitution doesn't protect tents. It protects speech and assembly."
True or false?
- It depends on whether legitimate concerns are justified,
as well as other issues discussed above. Moreover, interpretations differ.
Restrictions deemed proper by some may not be by others.
- Pace University Law Professor Bennett Gershman calls
New York's tent city protected speech, saying:
- Various Supreme Court cases affirmed that First Amendment
protections aren't limited to speech and assembly. They also include "certain
conduct that is intended to convey a message."
- New York's tent city resonated globally. As a result,
Bloomberg wants it removed, despite being "orderly and harmless."
- It doesn't "threaten public safety or traffic congestion."
At most, sanitation concerns might be raised. However, "protesters
apparently are keeping things relatively clean and safe."
- Weighing "the right of individual expression...against
the public interest in peace and quiet, the balance typically tilts toward
free speech unless the government can demonstrate a substantial interest
in curtailing the conduct, and also (shows that it's) not because of any
disagreement with the content of the conduct-speech, but for some other
legitimate government interest."
- Saying so isn't enough. Proving it conclusively is essential.
Bloomberg didn't try. Yet New York Supreme Court Justice Michael Stallman
overruled Manhattan Supreme Court Justice Lucy Billings' restraining order
in his favor. She said protesters must be allowed back with "tents
and other property." So far, they can come without tents and other
- OWS lawyer Allan Levine argued that banning tents infringed
First Amendment rights, saying:
- "The power of this symbolic speech is that it's
a 24-hour occupation," replicated nationally. "This conveys a
- Restricting First Amendment freedoms threatens all others
even though guidelines regarding speech-related conduct aren't clear.
- Gershman said camping overnight in Central Park would
differ markedly from Liberty Park Plaza (what protesters call Zuccotti
- Moreover, its symbolic significance dramatically demonstrates
"the economic disparities in our society without threatening any substantial
- As a result, it's "well within" First Amendment
parameters. Bloomberg should endorse, not condemn it.
- Of course, he and Wall Street are closely linked. At
issue isn't public interest concerns, just his own and fellow Wall Street
- They want nothing interfering with their right to manipulate
world markets for profit, ripping off countries and people globally.
- Key above all else is stopping them. Otherwise, real
change isn't possible. Accomplishing job one opens all other possibilities.
- A better world is possible, but wishing won't make it
so. The mother of all struggles demands staying the course for the long
- There's plenty of incentive because the alternative's
too grim to accept!
- Stephen Lendman lives in Chicago and can be reached at
- Also visit his blog site at sjlendman.blogspot.com and
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