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04/06/2017

More on Hively v. Ivy Tech
Michael Ramsey

David Weisberg comments:
 
Prof. Green has already commented on Judge Posner’s provocative concurring opinion in Hively v. Ivy Tech Community College, but I would like to approach it from a different angle.  Judge Posner asserts: “Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word ‘speech’ in the amendment embraced flag burning or other nonverbal methods of communicating.”  I believe this is incorrect; there is indeed an indication that the framers thought that the First Amendment would extend to all methods of communicating.
 
In relevant part, the amendment provides: “Congress shall make no law…abridging the freedom of speech, or of the press[.]”  Focus, to begin, on the freedom of “the press”.  It should be obvious to any fair-minded person that “the press” is in this context a synecdoche—that is, it is a reference to a species that is meant to represent a genus.  No one, not even Judge Posner, could seriously contend that the drafters sought to protect only written material produced on a printing press, while leaving hand-written material unprotected.
    
So, the freedom of “the press” is much more expansive and extensive than a narrowly literal reading of the amendment would support.  To my mind, that is indeed an indication that freedom “of speech” also should be understood, not narrowly or literally, but as broadly as reasonably possible.  It is true that burning a flag is not “speech” in the usual sense.  It is, however, “speech” in an unusual sense: that is why flag-burning is often referred to as “symbolic speech”.  Similarly, it is true that a hand-written poster is not “the press”, or even a product of “the press”, in the usual sense.  If “the press” must necessarily be understood expansively to represent every kind of written communication, I believe that “speech” can best be understood in a similarly expansive sense to represent every kind of communication—including “symbolic speech”—that is not in writing.