Freedom of Speech and Society: A Social Approach to Freedom of Ex ...

prohibit the activity.¹³ The issue is so emotional that even after the Supreme Court decision in 1990, flag burning and desecration continues to be an emotional issue in the US and local governments continued to prosecute offenders even though the charges invariably failed either at trial or on appellate review.¹⁴ While public incineration of the American flag communicates an unambiguous and powerful message, in Rumsfeld, the expressive aspect of barring military recruiters was found to be simply too attenuated for the conduct to be protectable speech.¹⁵ As the court also observed, to permit such an interpretation of speech would enable others who disagree with military policies to simply refuse to pay income taxes.¹⁶ In short, while speech is not limited to writing and speaking, speech through conduct is subject to scrutiny to determine if the expressive aspect (speech) is not overshadowed by activities that are not contemplated as constituting speech.¹⁷ As the Rumsfeld decision made quite clear through the examples cited by the court, virtually any human activity might be construed as speech.

Defining the limits of “free” is not so simple. Yet, it is “freedom of speech” and not “speech” that is protected by “doctrinal law”––consisting of constitutions, statutes, and case law.¹⁸ The distinction between all speech and legally protected speech is critical because no one seriously argues that free speech means the right to say or publish whatever you want about anyone or anything without consequences, though the US First Amendment as sometimes interpreted by a minority of the US Supreme Court has come exceedingly close to such an interpretation. The distinction between speech and protected speech demonstrates why free speech theory is an integral aspect of any analysis of doctrinal law. Free speech theory seeks to define the reasons why certain types of speech should be accorded the special status of free speech. Without sound underlying theory, laws dealing with speech would be difficult to evaluate and could be viewed as arbitrary. It is theory that sets forth the goals and expectations of free speech and some of the major theories routinely relate to specific types of speech that should be accorded free speech status.