Physical Speech

When “Speech” Becomes a Physical Act 

Most people think the First Amendment is simple: it protects your right to speak, write, and express ideas. That’s exactly what it was designed to do. But in Texas v. Johnson (1989) and United States v. Eichman (1990), the Supreme Court decided that physical acts like burning the American flag are also protected speech.

At first glance, it sounds like a bold defense of free expression. But look closer - this isn’t just about protecting protesters. This ruling expanded the First Amendment beyond its original intent, created a dangerous precedent, and left ordinary citizens in a position where they have to question what behavior is actually legal.

The First Amendment Was Always Verbal and Written

The First Amendment has always been about words, ideas, and beliefs. Speech, writing, and symbolic communication like petitions or demonstrations - these are protected.

When the Court declared that burning a flag counts as “speech”, it crossed a line. Physical actions can cause harm, incite anger, or damage property. By labeling such acts as protected, the Court rewrote the Constitution in practice, creating a new, quasi-physical right that the original framers never intended.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Ethical Concerns: Did the Court Overstep?

The Supreme Court takes an oath to uphold the Constitution. Expanding a verbal and written right into a physical one without a formal amendment is more than interpretation - it’s creating new law.

That’s dangerous. Citizens are expected to follow existing laws, like 18 U.S.C. § 700, which prohibits flag desecration. Yet the Court has said part of that law violates the Constitution. Suddenly, the government can’t enforce its own statutes because the Court has redefined what counts as speech. This blurs the line between judicial review and lawmaking - a core ethical concern.

The Dangerous Precedent

The ruling doesn’t just protect flag burners. It creates a loophole where almost any physical act could be argued as “expression”.

Think about it: if burning a flag is speech, what’s next? Could someone argue that destroying property, assault, or other physical acts are also “symbolic expression”? Courts have generally rejected violent behavior as protected, but the principle is fuzzy. The subjective nature of symbolic speech leaves citizens uncertain about where the law actually draws the line.

This is not theoretical. Every time the Court expands a constitutional right, it shifts the boundaries of acceptable behavior - and ordinary citizens are left navigating this ambiguous landscape.

Nullifying Federal Law: The Case of 18 U.S.C. § 700

Federal law has long prohibited desecration of the American flag. 18 U.S.C. § 700 was meant to protect a national symbol from being destroyed or insulted. But the Court’s ruling says flag burning is protected speech, effectively nullifying enforcement.

For everyday Americans, this creates a perception problem: if the Supreme Court can redefine what counts as a constitutional right, why should anyone obey laws that seem enforceable until the Court rules otherwise? This is not just inconvenient; it undermines the rule of law and public trust in our government institutions.

Post-Facto Limitations: Why the Court Crossed a Line

One of the biggest dangers of this Supreme Court ruling is retroactive limitation. The Court effectively decides after the act occurs whether a physical action is protected as “speech.” That is a serious legal and ethical problem.

Citizens shouldn’t be subject to rules that are only determined after they act. In the case of symbolic speech, if a person can state a viable claim that their act conveys a message, then under the First Amendment, it must be treated as a protected right. The Court cannot wait until after a crime has allegedly been committed to decide if the act counts as expression. Doing so undermines due process, creates legal uncertainty, and sets a dangerous precedent where ordinary citizens can never be sure whether their actions are lawful.

This is exactly why the expansion of the First Amendment into physical acts is so problematic: it allows courts to retroactively judge behavior and restrict rights after the fact, which is inherently unethical and contrary to the Constitution’s protections.

Physical Acts and Public Safety: A Dangerous Loophole

Another serious problem with the Supreme Court’s symbolic speech ruling is that it doesn’t draw clear lines between harmless expression and destructive behavior. For example, burning a flag may be framed as symbolic speech, but it is still a violent physical act. It damages not only the flag but also any property underneath it - benches, sidewalks, lawns, or even vehicles.

This ruling creates a dangerous precedent: if someone can claim their destructive act conveys a message, the Court could classify it as protected under the First Amendment. That means:

• Property damage could be justified as “expression.”

• Public safety risks increase because acts that ignite fire, smoke, or other hazards might now be framed as symbolic speech.

• Victims of these actions have little recourse if courts treat the acts as constitutionally protected.

It’s not just about property. Imagine a protester throwing objects, destroying signs, or endangering bystanders while claiming a symbolic message. The logic of the Court’s ruling could potentially be stretched to protect nearly any physical act intended to convey a message - even if it causes harm.

The ruling also confuses law enforcement. Officers cannot know in advance whether a physical action is a criminal act or constitutionally protected speech. This puts police, bystanders, and communities at risk and undermines the very concept of predictable, enforceable law.

Ultimately, the Supreme Court created a loophole that could be exploited, intentionally or not. By framing destructive acts as speech, the decision threatens public safety, property, and the legal certainty citizens depend on. It’s not just an abstract constitutional question - it’s a real-world risk to everyday Americans.

Why This Matters to You

The Supreme Court’s symbolic speech ruling is not just a quirky legal footnote. It is a major ethical and societal turning point:

• It expanded the First Amendment beyond its original intent.

• It created a loophole where physical acts could be framed as protected speech.

• It nullified federal law, making citizens question which statutes actually apply.

• It left the public uncertain about what behavior is lawful, undermining trust in both the judiciary and government.

• It exposes communities to property damage and public safety risks, all under the guise of free expression.

• It allows courts to retroactively impose limits after the fact, violating basic principles of due process.

Citizens, educators, and lawmakers need to understand the risks of judicial overreach. While protecting free expression is crucial, allowing courts to create new constitutional rights without a formal amendment sets a dangerous and unethical precedent.

The next time you see a flag burning, remember: it’s not just a political protest. It’s a reminder that the Supreme Court can reinterpret rights, stretch the Constitution, and redefine legal boundaries, often leaving citizens in the dark about what is truly protected.