Offensive statues should be protected under First Amendment – STLtoday.com
Are statues that are offensive, reminding us of our racist history, protected under the First Amendment? As repugnant and politically incorrect as these statues may be, any attempt to force their removal would seem to constitute a violation of their First Amendment protections. Why, because these statues seem to be protected under what the courts have ruled to be protected symbolic speech.
Most forms of spoken or written speech are protected by the Constitutions First Amendment, particularly political expression. However, certain speech is not protected. For example, fighting words or speech aimed clearly at inciting violence; libel; obscenity; threats; false advertising in business (but allowed in political campaigns) are not protected speech.
Although the constitutional framers were silent on protecting symbolic speech, the U.S. Supreme Court first ruled to protect symbolic speech in Stromberg v. California in 1931 when the court ruled against a California law that forbade protesters from displaying a red flag as a symbol of opposition to organized government.
Since 1931, the concept of symbolic speech has been expanded by federal court rulings to cover a broader array of messaging considered a form of speech or expression. Protected symbolic speech may convey messages through sit-ins, protest signs, armbands, badges, flag burning, and all sorts of artistic expression such as dance, theater, paintings, photographs and statuary.
Today, our society is clashing over the removal of certain statuary that proponents of removal argue remind us of our racist past, even celebrating it. It is completely understandable why certain groups, especially African-Americans, would deem such statuary offensive and push for its removal. The problem is that the statue of, say, Robert E. Lee might be offensive, but being offensive, according to federal court decisions, is not reason enough to allow for the removal of such statues under the First Amendment.
The display of a Robert E. Lee statue by itself is unlikely to cause a riot any more than a gun by itself is likely to kill someone. Consequently, it seems that federal court decisions for the past 86 years would suggest that controversial Confederate statuary constitutes protected symbolic speech, regardless of the offensive messaging.
As a liberal, I am frustrated by my liberal friends who want it both ways. They want to use the First Amendment to protect their speech, writings and artistic expressions, but they oppose allowing the other side their right of freedom of expression.
For instance, last January, U.S. Rep. William Lacy Clay defended a painting on a Capitol wall as constitutionally protected artistic expression. The artist was a local high school student who created rather negative, piglike images of police as they confronted Ferguson protesters. Some felt the painting was offensive because it denigrated police, including Republican U.S. Rep. Duncan Hunter, who decided to remove it from the wall. There was outrage over its removal with Clay and mostly other liberals, including myself, arguing that this young artist had a right to express his feelings through his painting under the First Amendment.
But where are these defenders of this artwork now? Lets face it, we are a bunch of hypocrites arguing that speech should be protected when we want our messages advanced, but quick to condemn freedom of expression when we do not like the message. This is a natural human inclination, but it does not pass the legal scrutiny of our federal courts.
In Texas v. Johnson (1989), the Supreme Courts Justice William Brennan ruled that flag burning, as offensive as it may be, constitutes symbolic speech that is constitutionally protected, reasoning that the government may not prohibit expression simply because it disagrees with its message.
It should not be forgotten that the ACLU lost many of its members, especially Jewish members, after the ACLU successfully defended the right of a neo-Nazi group to march in Skokie, Ill., displaying very offensive Nazi images such as swastikas. However, the ACLU placed constitutional principle before their membership interests, and did the right thing. The ACLU acknowledged how repugnant to its organization this neo-Nazi march would be, but they argued that they had no choice, as advocates of civil liberties, but to support the constitutional right of these neo-Nazis to march.
President Jimmy Carter also said at the time: I must respect the decision of the Supreme Court allowing this group to express their views, even when those views are despicable and ugly.
Kenneth F. Warren is a professor of political science at St. Louis University.
View post:
Offensive statues should be protected under First Amendment - STLtoday.com
- NEWTON: Battle between Trump and the First Amendment continues - The Covington News - July 27th, 2025 [July 27th, 2025]
- That eerie sound youre hearing is the First Amendment falling - rawstory.com - July 27th, 2025 [July 27th, 2025]
- TRUMP GOES TOO FAR: Colbert cancellation puts spotlight on Trump war on the First Amendment - MSNBC News - July 27th, 2025 [July 27th, 2025]
- First Amendment doesnt provide the right to be heard, Fourth Circuit finds - Courthouse News Service - July 24th, 2025 [July 24th, 2025]
- Pennsylvania officers face First Amendment lawsuit for trying to criminalize profanity and using patrol car to chase man who recorded police - FIRE |... - July 24th, 2025 [July 24th, 2025]
- Ninth Circuit Reinforces First Amendment Protections of Parent Banned from School District in Response to Speech the District Found Offensive -... - July 24th, 2025 [July 24th, 2025]
- Press Release: Reps. Hank Johnson and Sydney Kamlager-Dove Propose Bill to Safeguard Artists' First Amendment Rights - Quiver Quantitative - July 24th, 2025 [July 24th, 2025]
- What the GOPs Epstein revolt says about the First Amendment - Claremont COURIER - July 24th, 2025 [July 24th, 2025]
- Protesters and demonstrators voice their first amendment right along the street of Canton - 25 News Now - July 24th, 2025 [July 24th, 2025]
- First amendment vs. first-person shooter: Uvalde parents battle with 'Call of Duty' maker in court - Fortune - July 24th, 2025 [July 24th, 2025]
- Columbia University Says It Has Suspended and Expelled Students Who Participated in Protests - First Amendment Watch - July 24th, 2025 [July 24th, 2025]
- Stephen Colberts Late Show Is Canceled by CBS and Will End in May 2026 - First Amendment Watch - July 24th, 2025 [July 24th, 2025]
- US will appeal decision finding punitive executive order against Jenner & Block violates First Amendment - ABA Journal - July 24th, 2025 [July 24th, 2025]
- NPR loses. The First Amendment wins. - The Boston Globe - July 24th, 2025 [July 24th, 2025]
- Trial in AAUP Lawsuit Concludes With Clash Over First Amendment Rights of Noncitizens - The Harvard Crimson - July 22nd, 2025 [July 22nd, 2025]
- Harvard argues in court that Trump administration's funding freeze violated First Amendment - CBS News - July 22nd, 2025 [July 22nd, 2025]
- Harvard argues the government is in violation of the First Amendment. Trumps team frames the lawsuit as a contract dispute - CNN - July 22nd, 2025 [July 22nd, 2025]
- Standing up for Elmo and the First Amendment - Westerly Sun - July 22nd, 2025 [July 22nd, 2025]
- Why the Iowa Senate finally approved enhanced First Amendment protections - Bleeding Heartland - July 22nd, 2025 [July 22nd, 2025]
- First Amendment advocates urge open hearing for San Mateo County sheriff facing removal - The Mercury News - July 18th, 2025 [July 18th, 2025]
- Defeat the Press: How Donald Trumps Attacks on News Outlets Undermine the First Amendment - Variety - July 18th, 2025 [July 18th, 2025]
- An assault on the First Amendment? Yes. But also a lesson in the ethics of reporting police news. - Media Nation - July 18th, 2025 [July 18th, 2025]
- How Donald Trumps Attacks On News Outlets Undermine The First Amendment - TV News Check - July 18th, 2025 [July 18th, 2025]
- Who are First Amendment auditors? Encounters with them prompted police calls in California - Scripps News - July 16th, 2025 [July 16th, 2025]
- Greene County staff permitted to speak to press after pushback from First Amendment groups - The Daily Progress - July 16th, 2025 [July 16th, 2025]
- Death Threats Over Texas Flooding Cartoon Force Museum Journalism Event To Be Postponed - First Amendment Watch - July 16th, 2025 [July 16th, 2025]
- Its the right thing to do: Defense attorney picks up Shasta protester case pro bono, citing First Amendment concerns - Shasta Scout - July 12th, 2025 [July 12th, 2025]
- The First Amendment Protects Ideologically Based Ad Boycotts - Cato Institute - July 12th, 2025 [July 12th, 2025]
- IRS Finally Recognizes That the First Amendment Permits Pastors To Speak From the Pulpit - The Daily Signal - July 12th, 2025 [July 12th, 2025]
- Pocahontas Mayor Reacts Aggressively to Viral First Amendment Auditor - NEA Report - July 12th, 2025 [July 12th, 2025]
- ACLJ's Decades-Long Fight Leads to IRS Recognizing Churches' First Amendment Rights To Speak About Political Issues and Candidates From the Pulpit -... - July 12th, 2025 [July 12th, 2025]
- Central Piedmont fulfilling requests that would lead to First Amendment lawsuit being dropped: Plaintiffs - Queen City News - July 12th, 2025 [July 12th, 2025]
- How Tempe debate over feeding homeless at parks is becoming a First Amendment conversation - KJZZ - July 10th, 2025 [July 10th, 2025]
- IRS: Pastors and Politicians Dont Lose First Amendment Rights in Pulpit - Focus on the Family - July 10th, 2025 [July 10th, 2025]
- Trump admin waffles in court on whether pro-Palestinian foreigners have full First Amendment rights - Politico - July 8th, 2025 [July 8th, 2025]
- Airlines deportation deal with ICE sparks protests and boycott campaign, leading to First Amendment battle - The Free Speech Project - July 8th, 2025 [July 8th, 2025]
- Trump Judges Find No First Amendment Problem With Florida Forcing Teachers to Misgender Themselves - Balls and Strikes - July 8th, 2025 [July 8th, 2025]
- High Court To Hear Street Preacher's First Amendment Case - Law360 - July 6th, 2025 [July 6th, 2025]
- The Columbus Connection First Amendment, Independence Day Thoughts, and Happy Birthday CCN - Columbus County News - July 6th, 2025 [July 6th, 2025]
- Paramounts Trump Lawsuit Settlement: Curtain Call for the First Amendment? (Guest Column) - IMDb - July 6th, 2025 [July 6th, 2025]
- Fourth of July is a reminder to understand your First Amendment rights - The News Journal - July 4th, 2025 [July 4th, 2025]
- Big Tech Can't Hide Behind the First Amendment Anymore | Opinion - Newsweek - July 4th, 2025 [July 4th, 2025]
- FIRE amicus brief: First Amendment bars using schoolkid standards to silence parents' speech - FIRE | Foundation for Individual Rights and Expression - July 4th, 2025 [July 4th, 2025]
- The First Amendment Protects CNN's Reporting on ICEBlock and Iran - Reason Magazine - July 4th, 2025 [July 4th, 2025]
- MCPS to pay $125K to two county residents who sued over alleged First Amendment violations - Bethesda Magazine - July 4th, 2025 [July 4th, 2025]
- Commentary: Winter Garden arrest threat violated First Amendment rights - Orlando Sentinel - July 4th, 2025 [July 4th, 2025]
- First Amendment Expert Responds To BHUSD Policy - Hoover Institution - July 4th, 2025 [July 4th, 2025]
- Donald Trump: the surprise force who saved the First Amendment - Washington Times - July 4th, 2025 [July 4th, 2025]
- Paramount Will Pay $16 Million in Settlement With Trump Over 60 Minutes Interview - First Amendment Watch - July 4th, 2025 [July 4th, 2025]
- Trump Judges Reject First Amendment Challenge and Uphold Florida Law Requiring Teachers to Use Only Pronouns that Align with their Gender at Birth -... - July 4th, 2025 [July 4th, 2025]
- Justice Thomas sounds alarm on courts misapplying First Amendment in political speech cases - Courthouse News - July 2nd, 2025 [July 2nd, 2025]
- 'The full rigor of the Court's resources': Judge warns Trump against witness 'retribution' in First Amendment case over threatened deportations - Law... - July 2nd, 2025 [July 2nd, 2025]
- Federal Appellate Court Finds that School Board President Violated First Amendment in Restricting Followers on Social Media - JD Supra - July 2nd, 2025 [July 2nd, 2025]
- Protecting Kids Shouldnt Mean Weakening the First Amendment - Public Knowledge - July 2nd, 2025 [July 2nd, 2025]
- Opinion - Jesse Green: Congress must not violate First Amendment in fight against anti-semitism - Northern Kentucky Tribune - June 29th, 2025 [June 29th, 2025]
- VICTORY: New York high school to strengthen First Amendment protections following FIRE lawsuit - FIRE | Foundation for Individual Rights and... - June 28th, 2025 [June 28th, 2025]
- FCCs First Amendment Tour Arrives in Kentucky - The Daily Yonder - June 28th, 2025 [June 28th, 2025]
- ACLU of Pennsylvania Applauds Passage of Legislation to Expand First Amendment Protections in the Commonwealth - ACLU of Pennsylvania - June 28th, 2025 [June 28th, 2025]
- FIRE to court: AI speech is still speech and the First Amendment still applies - FIRE | Foundation for Individual Rights and Expression - June 28th, 2025 [June 28th, 2025]
- Podcast: Broadcast Journalism, First Amendment, and the Future - Wisconsin Broadcasters Association - June 28th, 2025 [June 28th, 2025]
- Advertising Companies Cave to the FTC. Media Matters Sues To Defend the First Amendment. - Reason Magazine - June 28th, 2025 [June 28th, 2025]
- Punishing Universities for Their Viewpoints Violates the First Amendment - Cato Institute - June 28th, 2025 [June 28th, 2025]
- Palestinian Student Sues Michigan School Over Teachers Reaction to Her Refusal To Stand for Pledge - First Amendment Watch - June 28th, 2025 [June 28th, 2025]
- CDT and EFF Urge Court to Carefully Consider Users First Amendment Rights in Garcia v. Character Technologies, Inc. - - Center for Democracy and... - June 24th, 2025 [June 24th, 2025]
- University of Oregon ordered to cover legal fees after settling First Amendment lawsuit - Campus Reform - June 24th, 2025 [June 24th, 2025]
- City attorney cites First Amendment rights in allowing rally; Third Street to open soon - Northern Wyoming News - June 20th, 2025 [June 20th, 2025]
- Guest column: 1,000 gathered in Oak Ridge to defend First Amendment - Oak Ridger - June 20th, 2025 [June 20th, 2025]
- Fighting Antisemitism Should Not Come at the Expense of the First Amendment - Reason Magazine - June 18th, 2025 [June 18th, 2025]
- How Hawley, Marshall choose Trump over the First Amendment | Opinion - Kansas City Star - June 18th, 2025 [June 18th, 2025]
- FARRAND: Saturday was a day we exercised three of our First Amendment rights - thenewsherald.com - June 18th, 2025 [June 18th, 2025]
- The State of the First Amendment in the University of North Carolina System - FIRE | Foundation for Individual Rights and Expression - June 18th, 2025 [June 18th, 2025]
- The First Amendment is Again in Colorados Crosshairs - The Federalist Society - June 18th, 2025 [June 18th, 2025]
- The Military Parade and Protections of the First Amendment - Just Security - June 18th, 2025 [June 18th, 2025]
- Court ruling clarifies limits of NCs First Amendment protection - Carolina Journal - June 18th, 2025 [June 18th, 2025]
- Letter to the Editor - Campbell County Democrats Cherish First Amendment Rights - The Mountain Press - June 18th, 2025 [June 18th, 2025]
- Editorial: Lets remember the peaceably part of First Amendment - Everett Herald - June 18th, 2025 [June 18th, 2025]
- PETA Sues NIH, NIMH in Groundbreaking First Amendment Lawsuit - People for the Ethical Treatment of Animals (PETA) - June 18th, 2025 [June 18th, 2025]
- First Amendment expert explains the right to protest amid 'No Kings' movement - CBS News - June 18th, 2025 [June 18th, 2025]
- ACLU of Nevada shares guidelines for protesters to safeguard their First Amendment rights - KSNV - June 18th, 2025 [June 18th, 2025]
- Las Vegas ICE protests: First Amendment right or breaking the law? - KLAS 8 News Now - June 18th, 2025 [June 18th, 2025]