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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.

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Offensive statues should be protected under First Amendment - STLtoday.com