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Tuesday, May 13, 2008

Symbolic Counter-speech and the Pledge of Allegiance

Commentators have been talking about four middle-school students in Minnesota who were suspended for not standing during the Pledge of Allegiance. District policy requires students to stand, although they need not recite the Pledge. The local ACLU sent a letter to the district and over the weekend the suspensions were lifted and the students' records cleared. Good to see the District came to its senses, although it is a shame it took the ACLU, the threat of a lawsuit, and some bad publicity to get it to do so.


Calvin Massey, writing at the Faculty Lounge, suggests that the case is troubling, although not as clear-cut as the ACLU suggests. I would suggest that it at least should be that clear-cut.

The students engaged in what I have described as symbolic counter-speech: Brandeisian counter-speech responding to a symbol, using the symbol and its surrounding details as the vehicle for that counter-speech. One common mode of symbolic counter-speech is nonparticipation in a symbolic activity, such as the ceremonies or rituals designed to honor or affirm that symbol.

Nonparticipation can be understood in two ways. First, it is a protected refusal to engage in expression aganst your wishes. Under West Virginia State Board of Educ v. Barnette, the First Amendment protects unwilling students from being compelled to salute the flag and recite the Pledge. Importantly, however, the symbolic celebration of the flag (to which Barnette provides protection from compulsion) resides the entire ceremony--everything from standing, to facing the flag, to placement of a hand over the heart, to the recitation of some or all of the words. Thus, to have any force, the liberty not to be compelled to participate must apply to every part of that symbolic celebratory ceremony.

But nonparticipation itself is expressive; the act of refusing to join sends a counter-message (silent and non-specific though it might be) about the symbol and its message. An individual's ability to protest a symbol must include the ability to opt-out from everything surrounding that symbol, even something seemingly as innocuous as being made to stand silently.

Massey does raise the spectre of the fact that this occurred in the school setting and the argument that the school has a legitimate pedagogical interest in preventing interference with school business that might come from sitting students fostering a "climate of sullen disrespect." But I do not see how sitting fosters any more of a climate of disrespect than not saluting or remaining silent or omitting certain words. It is a bit more obvious perhaps, but shows the same refusal to engage with the symbol and its surrounding details. I might agree if students engaged in more-disruptive modes of symbolic counter-speech--shouting down the flag, loudly uttering different words (hence the above cartoon), or perhaps even more-dramatic non-participation, such as turning away from the flag (although I would be troubled by the last one). But merely sitting this one out does not cause any sort of disruption in the Tinker sense or even interfere with the school's mission or message in the Morse v. Frederick sense.

Posted by Howard Wasserman on May 13, 2008 at 12:14 PM in First Amendment | Permalink


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I would argue that refusing to stand simply to be contrarian or to be a discipline problem is, itself, expressive and does send some message. Here the counter-speech is to the ceremony as something that the school endorses (rather than having anything to do with patriotism or the war) and which I, as a contrarian discipline problem, thus will challenge by not participating in the symbolic ceremony.

I think AndyK is driving at the same point Massey was making in highlighting the school context as potentially determinative. I return to the point I made in the original post--I do not see how not speaking or not placing hand-over-heart is any less disruptive of discipline and routine than not standing. A person can and should be able to do any of them simply to be contrarian and difficult.

As for the point between silent/non-disruptive v. loud/disruptive protest, I am not espousing one over the other and I am all for either one. But the school context means only (some) silent/non-disruptive protests will be protected.

Posted by: Howard Wasserman | May 13, 2008 3:10:23 PM

This is very interesting, but I'm curious from a pragmatic standpoint: does the reason for the speech have any bearing?

I can imagine students refusing to stand because they are a disciplinary problem, and then ex post facto getting advice to claim that it is for a principled reason. Assuming the refusal to stand occurs only once, do after-the-fact rationalizations receive this 1st Amendment privilige? That is, the administrator claims that the student refused to stand (1) because the kid is a disciplinary problem on any given day, or (2) because that particular day the kid was hiding a cigarette, and I guess we'll never know the truth NOW because the kid refused to stand.

I suppose I can easily see forcing a kid to stand as separable from the recitation of the pledge because, in addition to the symbolic act of standing, there is the action read as one of classroom discipline and routine.

Posted by: AndyK | May 13, 2008 2:29:57 PM

Anon's question rests on a questionable (I'd say false) premise: that quiet, non-disruptive protest is less effective and communicative than loud, disruptive protest. The quiet, non-disruptive protest in this case was extremely effective and communicative -- it made national news and here we are all talking about it. Mind you, I'm not opposed to being loud, confrontational, and disruptive; but those aren't the only, and not always the best, ways to get a message across.

Posted by: eric | May 13, 2008 1:52:35 PM

Does that mean that the less effective and communicative the counter-speech is, the more likely you are to be comfortable with it?

Posted by: anon | May 13, 2008 12:40:38 PM

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