Abstract

http://ssrn.com/abstract=1267400
 
 

Citations (1)



 
 

Footnotes (133)



 


 



Symbolic Expression and the Original Meaning of the First Amendment


Eugene Volokh


University of California, Los Angeles (UCLA) - School of Law

September 12, 2008

Georgetown Law Journal, Forthcoming
UCLA School of Law, Public Law and Legal Theory Research Paper 08-29

Abstract:     
People often argue that symbolic expression - especially flag burning - isn't really "speech" or "press," and that the Court's decisions protecting symbolic expression are thus illegitimate.

But it turns out that the original meaning of the First Amendment likely includes symbolic expression. Speech restrictions of the Framing era routinely treated symbolic expression the same as literal "speech" and "press." Constitutional speech protections of that era did so as well, though the evidence on this is slimmer. And the drafting history of the phrase "the freedom of speech, or of the press," coupled with the views of leading commentators from the early 1800s, suggests that the First Amendment's text was understood as protecting "publishing," a term that at the time covered communication of symbolic expression and not just printing. Though the Court has never relied on this evidence, even originalists ought to accept the Court's bottom line conclusion that the First Amendment covers symbolic expression.

Number of Pages in PDF File: 30

Keywords: First Amendment, Freedom of Speech, Symbolic Expression, Expressive Conduct, Flag Burning

Accepted Paper Series


Download This Paper

Date posted: September 14, 2008 ; Last revised: September 28, 2008

Suggested Citation

Volokh, Eugene, Symbolic Expression and the Original Meaning of the First Amendment (September 12, 2008). Georgetown Law Journal, Forthcoming; UCLA School of Law, Public Law and Legal Theory Research Paper 08-29. Available at SSRN: http://ssrn.com/abstract=1267400

Contact Information

Eugene Volokh (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-3926 (Phone)
310-206-6489 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 3,308
Downloads: 319
Download Rank: 53,267
Citations:  1
Footnotes:  133

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.250 seconds