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Constitutionally Protected Symbolic Speech

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Constitutionally Protected Symbolic Speech - by Stephen Lendman

Tent cities are constitutionally protected.

Symbolic speech examples include leafleting, picketing, demonstrating, marching, speaking publicly, flag burning, displaying t-shirts, armbands, banners and placards, sit-ins, as well as camping out in public places.

With some exceptions, all have First Amendment protection. Numerous Supreme Court decisions addressed the issue. Some agreed. Others didn't.

For example, in Hague v. Committee for Industrial Organization (1939), Justice Owen Roberts expressed the Court's plurality opinion, saying:

"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."

"Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."

While most Justices didn't concur, subsequent opinions endorsed symbolic speech rights. In Schneider v. State (1939), the Court ruled that city ordinances to keep streets clean and presentable didn't justify prohibiting literature and leaflet distribution to willing recipients.

In Kunz v. New York (1951), the Court held that mandating permits to speak publicly on religious issues was unconstitutional.

In Shuttlesworth v. City of Birmingham (1969), the Court ruled for petitioner Shuttlesworth's right to lead orderly 1963 civil rights marches. Doing so violated a city ordinance requiring permit permission. Calling it unconstitutional, the decision stated it was denied to censor ideas, not obstruct traffic.

Various High Court decisions ruled that speech, including camping out in public places, is subject to time, place and manner regulations such as traffic control. However, protected speech must have alternate ways to communicate without undo restrictions.

For example, in Clark v. CCNV, the Court ruled for the National Parks Service's right to prohibit camping out overnight because doing so complied with reasonable time, place and manner restrictions of expression.

The Court said incidental speech restrictions are constitutional provided they're not "greater than necessary to further a substantial governmental interest."

However, the Court stressed that the restrictions must be "narrowly tailored." That requirement is satisfied as long as it "promotes a substantial governmental interest that would be achieved less effectively absent the regulation."

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I was born in 1934, am a retired, progressive small businessman concerned about all the major national and world issues, committed to speak out and write about them.
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