72 Pages Posted: 5 Jan 2004
In this article, Professor Wasserman introduces, defines, and explores a new form of expression, labeled symbolic counter-speech. Symbolic counter-speech is an outgrowth of two extant free expression concepts - the right and opportunity to communicate through symbols and the Brandeis imperative of counter-speech as the acceptable answer to objectionable speech. Symbolic counter-speech responds to a symbol on its own terms, countering the message presented by a particular symbol while using that symbol as the vehicle or medium for the contrary message. Symbolic counter-speech includes a range of expressive actions, from silent non-participation with a symbol or symbolic ceremony to confrontation of the symbol with a different, contrary symbol to attacks on the original symbol by destroying it or altering it to create a new message.
Professor Wasserman considers symbolic counter-speech in the post-September 11 environment, when the United States has returned to what Vincent Blasi called a "pathological period," a period in which commitment to free speech wanes and in which government is especially likely to engage in systemic suppression. Although there have not been widespread governmental restrictions on expression, the primary feature of previous pathologies, there has been a dramatic increase in government and private patriotic symbolism and expression and of intolerance for objections to that patriotism. This has been particularly true with regard to the American flag and its complementary symbols, such as the Pledge of Allegiance, the national anthem and God Bless America. The focus of this paper is the increase in patriotic symbolism, along with incidents of counter-speech to that symbolism, at professional and collegiate sporting events, the primary forum in American society in which crowds of adults regularly engage in patriotic expression.
Finally, the concept of symbolic counter-speech and these examples of flag-related symbolic counter-speech show the inconsistency between principles and traditions of freedom of speech and the movement for "flag preservation," which logically would eliminate all symbolic counter-speech directed against the flag and its complements.
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