George Mason Law Review Civil Rights Law Journal


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It is, perhaps, the most basic of questions in First Amendment jurisprudence: What constitutes speech? Justice Stevens recently observed in dissent in Citizens United v. Federal Elections Commission that, “in *548 normal usage,” and since the adoption of the First Amendment in 1791, “the term ‘speech’ [has] referred to oral communications by individuals.”12 That narrow definition, of course, ends neither the inquiry nor the debate about the meaning of speech, but merely serves as a launching pad for further explication of the term. The Supreme Court, has recognized that speech clearly encompasses words (both spoken and written), pictures, paintings, drawings, and engravings.13 Whether other items, instances of conduct, or media artifacts fall within the ambit of speech, however, is not always so transparent. As Professor David Jordan observed during a panel discussion at the 2005 National Lawyer’s Convention: “[W]e’re still evolving what the meaning of speech is.”14


For example, does doing a burnout on a motorcycle constitute speech?15 Although this may seem like a silly question, it is a key issue in an ongoing lawsuit filed in 2012 on behalf of a South Carolina biker bar named Suck Bang Blow (“SBB”).16 SBB’s lawsuit challenges a Horry County ordinance prohibiting the activity.17 The lawsuit contends that burnouts are “expressive performances,” because the bikers who engage in *549 them are “expressing their manliness and macho.”18 Horry County, in contrast, contends that burnouts are merely a public nuisance.19 Although the lawsuit was originally filed in state court, where SBB obtained a temporary restraining order,20 it was later removed to federal court on federal question jurisdiction involving the First Amendment issue.21


The question of whether something constitutes speech is a threshold query. It must be distinguished from secondary issues raised only after something is determined to be speech, such as whether the speech is unprotected because it (1) falls within one of the “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem”22; or (2) is subject to regulation under a traditional standard of judicial review such as strict scrutiny,23 intermediate scrutiny,24 or rational basis.25


*550 Thus, while today’s motion pictures constitute speech within the meaning of the First Amendment, they are not safeguarded by the Constitution if deemed obscene under the Supreme Court’s ruling in Miller v. California.26 Similarly, while spoken words are a form of speech within the meaning of the First Amendment, some words will not be protected if they are strung together in such a way as to amount to a true threat of violence,27 an incitement to violence,28 or fighting words.29 Likewise, *551 perjurious statements constitute speech, but they do not warrant constitutional protection due to their content.30 These examples illustrate what Professor Frederick Schauer refers to as “the distinction between the coverage and the protection of the First Amendment.”31 Schauer adds that “[q]uestions about the boundaries of the First Amendment are not questions of strength--the degree of protection that the First Amendment offers--but rather are questions of scope--whether the First Amendment applies at all.”32 As this Part will illustrate, “[t]he First Amendment’s coverage questions are difficult.”33


What follows is a primer on the meaning of speech as recognized and articulated by various judicial bodies, rather than as embodied in normative theories or philosophies of free expression such as the marketplace of ideas,34 democratic self-governance,35 and human liberty.36 After all, as *552 Professor Peter Meijes Tiersma writes, “[r]egardless of one’s philosophy of the First Amendment, all theories must address the constitutional protection of ‘speech.’ Whichever of these competing theories one prefers, the meaning of the word ‘speech’ must function as a point of departure.”37


This Part examines speech in three parts: (1) expressive conduct and symbolic expression, (2) media artifacts and money, and (3) pure speech. Because there is substantial crossover among these parts due to the constantly evolving nature of speech, these parts serve as rough divisions rather than bright-line demarcations of speech.


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