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Flag Burning and the Founding Fathers

Prof. E. Volokh’s Flag Burning and Free Speech in the WSJ:

The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions — such as libel, slander, sedition, obscenity and blasphemy — covered symbolic expression on the same terms as verbal expression.

Many cases and treatises, including Blackstone’s “Commentaries” published in 1765 and often cited by the Framers’ generation in America, said this about libel law. And early American court cases soon held the same about obscenity and blasphemy. Late 18th and early 19th century libel law cases and treatises gave many colorful examples: It could be libelous to burn a person in effigy, send him a wooden gun (implying cowardice), light a lantern outside his house (implying the house was a brothel), and engage in processions mocking him for his supposed misbehavior.

Defamation law is not about speech at all, is it? It is generally about conveying information. If an action conveyed defamatory information, it was illegal. Thus, the brothel light was illegal. If it conveyed non-defamatory information– I don’t see that it should have been, under common law principles. Burning a simple effigy to indicate “I don’t like you” should not have been illegal. If it was burning an effigy of someone in an enemy military uniform, it should have.

At any rate, libel law regulated content, and doesn’t care about method of expression. Much of traditional social regulation regulated method, and didn’t care about content. (Admittedly, some of it, such as blasphemy laws, combined regulation of method– “no swear words”— and regulation of content— “no atheistic books”. )

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