I thought you did when you said Burning a flag is an action not speech.
Symbolic Speech
“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long
recognized that its protection does not end at the spoken or written word.”136 Thus wrote the
Supreme Court when it held that a statute prohibiting flag desecration violated the First
Amendment. Such a statute is not content-neutral if it is designed to protect “a perceived need to
preserve the flag’s status as a symbol of our Nation and certain national ideals.”137
By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding
that the statute served “the Government’s substantial interest in assuring the continuing
availability of issued Selective Service certificates,” and imposed only an “appropriately narrow”
incidental restriction of speech.138 Even if Congress’s purpose in enacting the statute had been tosuppress freedom of speech, “this Court will not strike down an otherwise constitutional statute
on the basis of an alleged illicit legislative motive.”139
In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited
the placing on public or private property of a symbol, such as “a burning cross or Nazi swastika,
which one knows or has reasonable grounds to know arouses anger, alarm or resentment in
others, on the basis of race, color, creed, religion or gender.”140 Read literally, this ordinance
would clearly violate the First Amendment, because, “[i]f there is a bedrock principle underlying
the First Amendment, it is that the Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”141 In this case, however, the
Minnesota Supreme Court had construed the ordinance to apply only to conduct that amounted to
fighting words. Therefore, the question for the Supreme Court was whether the ordinance,
construed to apply only to fighting words, was constitutional.
The Court held that it was not, because, although fighting words may be proscribed “because of
their constitutionally proscribable content,” they may not “be made the vehicles for content
discrimination unrelated to their distinctively proscribable content.”142 Thus, the government may
proscribe fighting words, but it may not make the further content discrimination of proscribing
particular fighting words on the basis of hostility “towards the underlying message expressed.”143
In this case, the ordinance banned fighting words that insult “on the basis of race, color, creed,
religion or gender,” but not “for example, on the basis of political affiliation, union membership,
or homosexuality.... The First Amendment does not permit St. Paul to impose special prohibitions
on those speakers who express views on disfavored subjects.”144 This decision does not, of
course, preclude prosecution for illegal conduct that may accompany cross burning, such as
trespass, arson, or threats. As the Court put it: “St. Paul has sufficient means at its disposal to
prevent such behavior without adding the First Amendment to the fire.”145
Shooting someone is not protected speech.
Read all about it here:
http://www.fas.org/sgp/crs/misc/95-815.pdf
