George Mason Law Review Civil Rights Law Journal

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“Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”265


This sentiment was expressed more than sixty years ago by the United States Supreme Court in a case challenging the constitutionality of a law allowing for the criminal conviction of a person “if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest.”266 Its relevance holds true today in cases that test judicial notions of the meaning of speech under the First Amendment. Society, for instance, still holds “prejudices and preconceptions” about both those with tattoos and those who engage in begging. Encountering a person who is begging can “have profound unsettling effects” on a passersby that go beyond mere annoyance to approach fear and safety concerns. Such negative sentiments *588 arguably can affect judicial decisionmaking as to whether the activities of tattooing and asking for money constitute speech.


Outsiders, however, have always tested the boundaries of freedom of speech under the First Amendment. Kathleen Sullivan, former dean of the Stanford Law School, writes that First Amendment battles in the early part of the twentieth century were waged mostly by “communists, anarchists, socialists, syndicalists, pacifists and assorted other ‘reds.”’267 Furthermore, religious minorities like the Jehovah’s Witnesses268 and even the far smaller and culturally ostracized Westboro Baptist Church269 have shaped much of the current constitutional free-speech terrain.


Into this mix now fall the tattooed and the beggars, groups of individuals against whom social stigmas long have existed and, in some quarters, still survive. Although Facebook users clearly are no minority or fringe group, their modes of communication--Liking, in particular--challenge older norms about acceptable styles of speech. Complete or grammatically correct sentences are no longer the norm for communication among a younger generation of Americans weaned on texting and instant messaging. Just as the Supreme Court observed more than forty years ago that the government “has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us,”270 so too should judges not eradicate from the otherwise “vast realm of free speech”271 icons and symbols such as “Likes” on Facebook because they require no physical effort or because they do not provide a detailed elaboration on their meaning.


Then what legal lessons on the meaning of speech might be gleaned from the trio of types of cases analyzed in this Article? Perhaps the *589 overarching lesson at the macro level is that as social and cultural norms evolve over time and, in particular, when they enter periods of tumult when meanings are contested and what is or is not socially acceptable is in a state of flux, the legal system has an opportunity to influence the debate in profound ways. We have examined the legal shift today on viewing tattoos and tattooing as speech, when once that was not the case; the same holds true for the current recognition of begging as speech, be it pure speech or symbolic expression. In acknowledging both tattoos and begging as speech, the law validates, even if just in some small way, the identity and existence of those who engage in such expression. Their socially stigmatized identities are undermined by legal recognition of the speech.


Similarly, by rejecting the notion that Liking on Facebook is speech, Judge Jackson can be perceived as holding on to the past at a time when modes of acceptable speech on digital technologies are themselves changing. Notably, differences in thinking exist between generations--like the way perception of tattoos has changed across generations, generational differences also affect communication. Today’s technologically savvy users who use abridged and truncated modes of communication in digital spheres are intermixed with those who are not conversant with them.


At the micro level, several lessons or principles about what constitutes speech can be derived. From the tattoo cases, possible principles are: (1) symbols and art constitute speech, not simply words; (2) skin is a medium on which speech can be both produced and reside permanently; (3) originality and creativity are not determinative of whether something constitutes speech (off-the-rack tattoos are speech just as much as original, copyrighted designs such as those created by Victor Whitmill on former boxer Mike Tyson’s face); (4) the process of creating speech (tattooing) should not be separated from the speech product (tattoos), with the former being treated as speech just as much as the latter; and (5) the vestiges of social stigmas that attach to those who sport tattoos should not affect whether the tattoos themselves are treated as speech.


Although the Facebook case, Bland v. Roberts, has yet to be resolved at the appellate level, several potential principles might be rendered: (1) the minimal physical effort involved in creating a Like on a Facebook should not affect whether a Like is speech; (2) truncated and abridged forms of expression should fall within the scope of the word “speech” in the First Amendment, such that their brevity makes no difference; (3) expression that does not comport with traditional, grammatical rules of standard written English should not affect whether something constitutes speech *590 where the U.S. Constitution is concerned; (4) the law must constantly play catch-up with new styles and manners of speech, just as it has over the years when playing catch-up with new technologies like movies and videogames; and (5) courts should not be involved in the slippery business of measuring the “substance” of communication to determine if it constitutes speech.


Finally, when it comes to begging, principles that might be derived include: (1) the financial status of an individual--a homeless or penniless person--seeking to communicate should not affect whether something constitutes speech; (2) pure speech (orally asking for money) and symbolic conduct (extending a cup for money) are equally as valuable to an individual and, in turn, should be treated equally as speech under the law; (3) audience annoyance with, and even fear of, an individual must not be determinative of whether that individual is engaging in speech within the meaning of the First Amendment; and (4) negative economic consequences at the community level from an activity like begging should not affect whether that activity is treated as speech.


Whether it is tattoos, Liking, begging, wedding ceremonies, horn honking, or biker burnouts, questions regarding whether something constitutes “speech” will continue to plague courts in the foreseeable future. Ultimately, none of the cases or controversies mentioned in this Article provide the legal system with a clear and concise definition of “speech” within the First Amendment. Broad principles like those described in Part II and articulated by the Supreme Court in recent opinions, such as Brown and Sorrell--that speech communicates ideas and includes the creation and dissemination of information--may initially seem unsatisfactory for those seeking precision and analytical rigor. However, it is possible that this very flexibility will allows courts to adapt and update First Amendment to protect changing social mores and new technologies and, in doing so, will render it a meaningful and relevant provision for those seeking constitutional validation of their expression.

1 Please note that citations in law review articles differ from citations in court memoranda. For example, you should cite to authority in this Write-On by using footnotes instead of citation sentences or intratextual citations. Additionally, law review citations use slightly different italicization rules than court memoranda citations. We recommend that you review student Comments on the George Mason Law Review website to ensure you conform to these rules.









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