Freedom of Expression - Com.

3070
Study Guide III.
SYMBOLIC SPEECH
Arlington National Cemetery, purpose, history of
On a Virginia hillside rising above the Potomac River and overlooking
Washington DC stands Arlington House. The 19th century mansion seems out
of place amid the more than 250,000 military grave sites that stretch out
around it. It wasn't meant to be a cemetery, but became one when it was
confiscated by the Federal Gov in 1863 from its owner, General Robert E.
Lee.The early burials where done in Mrs.Lees garden in hope to stop them
from returning and it worked. In 1882, the Supreme Court declared the US
Federal Government a trespasser on the Arlington grounds and ordered the
lands returned to the Lee family. With over 10,000 grave sites already
there, George Washington Curtis Lee sold the land to the US Government
for $150,000. Arlington National Cemetery is Americas most revered burial
ground, which shows the Nations history through the stores of those buried
there.
Ellis Island, origins, history and symbolic significance
One of the defining characteristics of America is the diversity of its
people and many cultures that comprise this nation. It has been estimated
that nearly half of all Americans today can trace their family history to at
least one person who passed through the Port of New York at Ellis
Island.During the years of Ellis Island immigration from 1892-1924, there
were more than 20 million people who passed through the immigration
station located at Ellis Island. In 2001, The Statue of Liberty-Ellis Island
Foundation, in parternship with the National Park Service, unveiled the
American Family Immigration History Center.
Lin, Maya, artist and sculptor
Vietnam Memorial Sculpture - Surrounding Controversy
In 1981, Twenty one year old Yale undergraduate Maya Lin won a public
design competition for the Vietnam Veterans Memorial. The black cut-stone
masonry wall contains the names of the fallen soldiers carved into its face as
requested by the families of the fallen. The wall is granite and V-shaped,

with one side pointing to the Lincoln Memorial and the other to the
Washington Monument. It opened to the public on Novemeber 13th, 1982.
The design was choses by a panel of eight professional artists and
architects. It stands in marked contrast to the figurative memorials, usual in
stone or bronze, whose tradition goes back hundreds of years. A small group
within the Vietnam Veterans community felt that the sculpture was an
affront. Eventually a compromise was reached and an accompanying sculpture
that would be located at an appropriate distance away from the wall.
Military Funerals
-A military funeral is a specially orchestrated rite given by a countries
military for a soldier, seaman or airman who died in battle. Military funerals
are also given to veterans or other prominent military figures and heads of
state. A military funeral may feature guards of honor, the firing of volley
shots as a salute , drumming and other military elements, with a flag draping
over the coffin.
Strobl, Lt. Col. Michael, Taking Chance (film)
Semiotics, Definition and examples of
Charles Sanders Pierce
Ferdinand de Saussure
Statue of Liberty
It signifies the importance of freedom, hope and opportunity.
Reasons for its creation
It was given to the US by the Frence to represent the friendship between
the two countries established durning the American Revolution.
Bartholdi, Frederick
Sculpted by Frederick Auguste Bartholdi. The statue was a joint effort
between America and France. The american people were responsible for
building the pedestal while the French assumed responsibility for the statue
itself. Bartholdi, for his part, required the assistance of an engineer to
address structural issues associated with designing such a large copper
structure. Alexandre Gustave Eiffel (designed the Eiffel Tower) was
commissioned to design the massive iron pylon and secondary skeletal
framework. In America, fund raising for the pedestal was going slowly, so

newspaper publisher Joseph Pulitzer used the editorial pages of his

newspaper, The World, to support the fund raising effort.

Symbols in everyday life

Sports logos and names
Washington Redskins controversy
-Symbols are an integral part of the daily traffic of human, political and
business communication. They can be both a source of inspiration and
controversy.
Washington Redskins controversy
Texas V. Johnson, 1989
Constitutional Protection of Flag Burning
During the Republican nation convention in Dallas in 1984, Gregory Lee
Johnson participated in a political demonstration, in which he burned a flag.
Johnson was charged with a crime because he violated Texas penal code Ann.
Section 42.098 (a)(3). Outcome:He was first charged and sentenced to 1
year in prison with a $2000 fine, but then the Supreme Court ruled 5 to 4
that the Texas statute was invalid. The court further ruled that Johnsons
act of flag burning was an example of expressive conduct and that to deny
him that right was a violation of the 1st Ammendment.
1. Johnsons conduct was sufficiently imbued with elements of
communication to presuppose 1st Amendment considerations.
2. The states interest in preventing breaches of the peace was not a
factor since no disturbance of peace actually occurred or threatened to
occur.
3. The states asserted interest in preserving the flag as a national
symbol of unity cannot be supported since the attempted restrictions on
expression are content based and are therefore subject exacting
scrutiny.
Justice Rehnquist, in a dissenting opinion, wrote, That the American
flag has come to be the visible symbol embodying our nation and is not simply
another idea or point of view competing in the marketplace of ideas
Signigicance
-It should be noted that former President George Bush failed in his
effort to make flag burning illegal in the US despite significant GOP support.

-This case affirmed the publics right to express opinions or engage in

symbolic speech that while seemingly unpopular is still protected under
the 1st Amendment.
The National September 11th Memorial and Museum
Proposed Park 51 Islamic Community Center
The Memorial consists of two massive pools set within the footprints of the
Twin Towers with the larges manmade waterfalls in the country cascading
down their sides. They are a powerful reminder of the Twin Towers and of
the unprecedented loss of life from an attack on our soil.The names of the
nearly 3,000 individuals who were killed in the September 11 attacks in New
York City, Pennsylvania and the Pentagon and the February 1993 World
Trade Center bombing will be inscribed around the edges of the Memorial
pools.
United States v. O Brien, 1968
Is the burning of ones draft card considered symbolic
speech?Are such forms of symbolic speech deserving of protection under
the First Amendment? Morning of March 31st, 1966, David Paul OBrian and
three companions burned their selective registration cards before a sizable
crowd on the steps of the South Boston Courthouse. OBrian did so in a
public effort to persuade other to adopt the anti-war beliefs of him and his
friends. Members of a large crowd attacked OBrian and his friends. FBI
agents moved them to a court house for protection. He admitted to burning
it in protest. He was tried under Title 50 of the Universal Military Training
and Service Act of 1948. Brian argued that the amended section was
intended to abridge freedom of speech as well as serving no legitimate
legislative purpose. Outcome: Trial court ruled against OBrian. Case was
then appealed to the First Circuit Court of Appeals which overturned part of
the lower courts ruling. The case went before the US Supreme Court. The
US Supreme Court ruled that his actions where not protected symbolic
speech.Significance: The Supreme Court established that not all forms of
symbolic speech and nonverbal expression are fully granted 1st Amendment
protection if there is a legitimate gov. interest. The gov. set up the OBrian
Test:
1.if it is within the constitutional power of the gov.
2.If it furthers an important or substantial gov. interest

3. if the gov. interest is unrelated to the suppression of free

expression.
4. if the incidental restriction on alleged 1st Amendement freedoms is
no greater than is essential to the furtherance of that interest.

HATE SPEECH
Brandenburg v. Ohio, 1969
Can the gov. punish inflammatory speech that does not directly incite or
promote imminent lawless action? Clarence Brandenburg, a KKK leader in
rural Ohio, contacted a reported at a Cincinnati TV station and invited him to
come and cover a KKK rally in Hamilton County. Portions of the rally were
taped, showing several men in robes and hoods, some carrying firearms, the
burning of a cross followed by speeches. One of the speeches made
reference to the possibility of revenge against blacks and Jews and those
who support them. Outcome: Brandenburg was later convicted of advocating
violence under Ohios Criminal Syndicalism statute which makes it illegal to
advocate crime, sabotage, violence or unlawful or political reform. as well
as assembling with a society, group or assemblage of persons formed to
teach or advocate the doctrines of criminal syndicalism.The case was later
appealed to the US Supreme Court, which reversed Brandenburgs conviction
holding that gov. connote constitutionally punish the abstract advocacy of
violent behavior or the violation of public law. The unanimous majority opinion
was per curium. The Courts per curium opinion held that the Ohio Criminal
Syndicalism statue was overly broad and in violation of the US Constitution.
The Court used a two pronged test to evaluate speech acts. Speech can be
prohibited: 1) if it is directed at inciting or producing imminent lawless
action and 2) if it is likely to incite or produce such action. The
Brandenburg case resolved the debate between those who urged greater
gov. control of speech for reasons of security and those who favored
allowing as much speech as possible and relying on the marketplace of ideas
to reach a favorable result.

Chaplinksi v. New Hampshire, 1942

Fighting words doctrine, meaning, reasons for

The Court defined fighting words as: those having a direct tendency to
cause acts of violence by the person to whom, individually, the remark is
addressed. Chaplinski involved a Jehovahs witness and his activities on a
street corner in Rochester, New Hampshire. Chaplinksi was passing out
literature of his sect while simultaneously denouncing all religions as a
racket. Chaplinski was arrested under a New Hampshire stature, part of
which, forbade addressing any offensive, derisive or annoying work to any
other person who is lawfully in any street or other public place. The
Chaplinkski case upheld the New Hampshire stature which punished the use
of such words and held that the fighting words doctrine could be used to
impose a prior restraint on an individuals symbolic speech activities.
Civility, Problems Associated with Enforcing Civility
Criminal vs. Civil Law
Doe v. The University of Michigan, 1989
University speech codes:
Challenges and difficulties
According to UofM, during the three years leading up to the development of
the speech code, there had been a number of incidents of racism on campus.
- January 27th 1987 unknown person(s) distributed a flier declaring
open season on blacks.
- February 4th, 1987- student disc jockey at the campus radio station
allowed racist jokes to be broadcast.
-At a demonstration protesting these incidents, a KKK uniform was
displayed from a dorm window.
UofM sought to regulate hate speech by adopting a speech code as part of
its Policy on Discrimination and Discriminatory Conduct.
1.) Any behavior, verbal or physical, that stigmatizes or victimizes an
individual on the base of race, ethnicity, religion, sex, sexual orientation,
creed, national origin, ancestry, age, marital status, handicap or Vietnam era
veteran status is disallowed.
2.) Creates an intimidating, hostile or demeaning environment of
education pursuits, employment or participation in University sponsored
extra-curricular activities is disallowed.
Sanctions for violating the code could include a formal reprimand, community
service, sensitivity training classes, payment of restitution, removal from

the university, suspension from classes and/or expulsion from the university.
The latter two remedy could be imposed only for violent or dangerous acts.
An anonymous graduate student in psychology and biopsychology challenged
the university policy alleging that the policy might have a chilling effect on
his right to discuss potentially controversial theories of biology in class.
Outcome: While the courts agreed that fighting words are not protected
under the 1st Amendment, the university could not establish an anti
discrimination policy which had the effect of prohibiting certain speech
because it disagreed with ideas or messages sought to be conveyed. Nor
could the university proscribe speech simply because it was found to be
offensive, even by a large number of people. Significance: The Federal
District Court found the University Code of Conduct to be in violation of the
1st Amendment and was suspended from moving forward.
Grand Jury, Purpose of
National Socialist Party of America, v. Village of Skokie
The Nazi march on the city of Skokie, IL
The National Socialist Party was at first denied the right to hold a parade in
Skokie, Illinois; a predominantly Jewish community. Outcome: They where
eventually given the right to demonstrate, although they did not. Probably no
case involving the 1st Amendment so tested the fabric of the marketplace
of ideas theory as did the Skokie casel
RAV. v. The City of Minneapolis, MN., 1992
St. Paul Bias Motivated Crime Ordinance, problems with
Is the burning of a cross in someones front yard considered
symbolic speech and thus protected under the 1st Amendment?
Richard A Victoria was a 17 year old white teenager who was charged
with violating a St.Paul Minn. Crime ordinance for burning a cross on
the fenced yard of a black family in the predawn hours of Jun 21st
1990. In burning the cross in the couples yard. Victoria violated a city
disorderly conduct ordinance which made it a misdemeanor for anyone
to place a symbol, object or graffiti, including a swastika or burning
cross, on public or private property if its likely to arouse anger, alarm,
or resentment in others on the basis of race, color, creed religion or
gender. The ordinance was designed to be a fighting words ordinance.
Outcome: In making its decision, the US Supreme Court found that
burning a cross is considered a form of symbolic speech and is

therefore protected under the 1st Amendment. RAVs actions could

be considered illegal for other reasons. The US Supreme Court found
that an anti bias ordinance based on hostility towards the message
was a form of content discrimination and was not what the founders
of the Constitution intended.
Snyder v. Phelps, 2010 (U.S. Supreme Court Decision)
Protesting at Military Funerals, Westboro Baptist Church
The case went before the US Supreme Court. At issue, was whether
protesters at a funeral are protected from liability. Snyder successfully
sued the Westboro Baptist Church for intentional infliction of emotional
distress, invasion of privacy and the jury awarded Snyder $2.9 million in
compensatory damages and $8 million in punitive damages. The case was
overturned by the 4th Circuit Court of Appeals and went before the US
Supreme Court. In an 8-1 decision, the US Supreme Court found in favor of
the Phelps family and the Westboro Baptist Church.
- Simply put, the church members had the right to be where they
were. Westboro alerted local authorities to its funeral protest and fully
complied with police guidance on where the picketing could be staged.
DUE PROCESS
Due Process and the 6th Amendment
Guantanamo Bay Naval Station
Detention of foreign prisoners
Habeas Corpus, principle of
Innocence Project, purpose of organization
Problems Associated with the news media and public opinion
State of California v. O.J. Simpson, 1995, Significance of
State of N.J. v. Richard Bruno Hauptman, 1935, Significance of
To what extent does the media interfere with due process of law?
Charles Augustus Lindberg III was the son of famous US aviator Charles
Lindbergh and Ann Morrow. The child was kidnapped on March 1st,1932 from
their home. A ransom note was left demanding $25,000. The note was

written in poor English. On May 12th, 1932 the baby was found dead less
than a mile from the Lindbergh estate. They tried a man named Richard
Hauptmann. He was sentenced to death. To the day he died he claimed he
was innocent. 1st case where the media played a significant role.
Prosecutorial Misconduct
Duke University Rape Case, 2006, Case and Significance of
Michael Morton, Case and Significance of
Rasul v. Bush, 2004
U.S. Constitutional Amendments 5-8
Wrongful Conviction and Detainment
Audrey Edwards, Case of
Central Park 5., Case of
Ronald Cotton and Jennifer Thomas, Case of
Troy Davis, Case of

IMPORTANT DATES
April 19, 1775
July 4, 1776
1775 1782
1861-1865
1914-1918
1941-1945 (1939-1945)

Readings: Please review main points of assigned readings