Originalism and Symbolic SpeechMike Rappaport

One of the things about being an originalist in constitution law is that it affects one's ability to opine about the Constitution.  When I am asked about the meaning of a particular constitutional provision, I am often forced to say, "I don't really know.  I haven't done the history."  By contrast, nonoriginalists who rely on policy analysis have a much easier time.  They can, by considering Supreme Court precedent and their policy views on the matter, often come up with a quick answer.  They seem to know more, but the way to put it is that for them there is less to know.

But there is another feature of originalism that compensates for the above downside. Because originalists believe that the meaning of terms depends on the historical meaning of the language, one can often change people's minds about issues.  The answer is more objective, depending less on people's policy views.  One does not have to convince someone to abandon their preferred policies, one need only show them that the evidence cuts against their view of the original meaning.

Exactly this aspect of originalism is raised for me by Eugene Volokh's recent paper about symbolic speech.  Eugene may not remember it, but we once had a conversation about symbolic speech, such as flag burning.  I argued that flag burning did not seem like speech to me, but conduct -- expressive conduct, if you will -- and the First Amendment only protected freedom of speech.  Eugene countered that it made much more policy sense to protect expressive conduct and I should assume the Framers were reasonable.  But I replied that expressive conduct raised additional problems -- since the conduct could cause much more harm -- and I didn't think one could impute to the Framers this policy view when they had used the words "freedom of speech."  I said to Eugene I might be convinced if he had evidence from the time that freedom of speech included expressive conduct, but until then I was skeptical. 

Well, Eugene has now supplied some of that evidence.  In a recent article and op ed piece, he has argued that the Framers' generation generally treated verbal expression and symbolic expression in the same way.   He writes:

The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression.

Many cases and treatises, including Blackstone's "Commentaries" published in 1765 and often cited by the Framers' generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior.

In a 1795 Pennsylvania case, the prosecution and defense agreed that erecting a liberty pole was the sort of thing to which constitutional free speech principles might apply. These tall poles, usually surmounted with a flag or a liberty cap, were originally a symbol of opposition to English government, but by the 1790s they had became a symbol expressing opposition to perceived domestic tyranny as well.

Evidence of this type is powerful.  While I haven't carefully studied his article or researched the area, my reading of his article convinces me to change my tentative view.  Previously, I assumed "speech" meant "verbal expression."  I now will assume, until I have evidence to the contrary, that it includes "symbolic expression." 

Originalism is a methodology that actually lets you change people's minds.