Stealing signs
posted by Howard Wasserman
This sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading “Obama Vandals, stealing only stiffens our resolve,” which I infer means they also had signs stolen or destroyed.
I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not “American.” I am reading the sign to say something like “stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value.” If so, I want to push back on that.
I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.
This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner’s interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.
One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of so much of the dislike for President Obama.
November 4, 2012 at 11:16 pm
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Responses (17)
nidefatt - November 4, 2012 at 11:58 pm
I think it was probably the “I may not agree with what you say but I’ll defend to the death your right to say it” value that these people were referring to.
Your point would make for an interesting epitath: “Here lies so and so, murdered while his family was raped, and though the law condemned his untimely death and the violation of his children, it was, ultimately, American! Hurrah for the First Amendment!”
Seriously, this is the dumbest post I’ve seen in a long time.
Howard Wasserman - November 5, 2012 at 12:01 am
Something can be anti-social and conemnable without being “un=American,” a term that suggests a violation of some principles that we uniquely hold to. Last I checked, lots and lots of countries condemn and punish rape and murder.
Orin Kerr - November 5, 2012 at 12:33 am
I think the argument that the sign makes is less likely to be about free speech than about private property. We value private property. Most people would say that taking away someone else’s private property is un-American.
Also, are you sure that taking away the sign was really an example of “counter speech”? As far as I can tell, we don’t actually know why the sign was stolen. It’s possible that someone took it down because the person didn’t like the candidate. But that’s just a guess. Maybe it was taken by someone who felt like engaging in some vandalism just for kicks. Or maybe the person wanted the sign for their own lawn, or to put it in a more visible place to help the candidate. Maybe the person wanted to collect some signs to sell on ebay someday. For that matter, maybe a dog ran away with it and no person actually had an intent to take it. (Seems unlikely, but who knows.) I’m not at all an expert in First Amendment law, but the fact that we don’t know why someone stole the sign seems to make it problematic to assign a positive speech value to the act.
Howard Wasserman - November 5, 2012 at 6:45 am
Good points all, Orin. I think my inference that it was expressive and it was done out of opposition to the sign’s message is the fairest one in overall context, but you are right that there are other explanations. I especially like the one about the Obama supporter taking it because he wanted his own sign; I have to think how taking a symbol in agreement with the symbol fits my model.
I may just be pushing back on the idea of fairly universal values and principles being described as American or Un-American. The prohibition against stealing predates America by about 5500 years.
Brett Bellmore - November 5, 2012 at 7:13 am
“But that does not mean the person who stole the sign was not exercising that core American value of free speech.”
No, actually it does mean that. It’s positively Orwellian to describe an act of censorship as free speech. And that’s what this was, not counter speech, but censorship.
A.J. Sutter - November 5, 2012 at 9:08 am
I’m sorry, I think the folks who added the message to the sign had it right. Shutting people up is not exercising freedom of speech in the spirit of the 1st Amendment. Stealing the sign erases the first person’s speech. Contrast that with e.g. pasting a Romney-Ryan sticker on top of it in such a way that it’s still recognizable as an Obama-Biden sign — rude, but a better argument that it is a dialogue.
It’s fine, of course, for you to disagree about what defines American-ness. And for all I know your argument about counter-speech might even succeed in court. But I think such analysis suffers from an excess of intellectualization, and a victory on legal grounds would be a sad one from a social point of view. As a society, we should be encouraging debate — not defending, on Constitutional grounds, the silencing of it.
Andrew MacKie-Mason - November 5, 2012 at 11:05 am
“So his expressive interests yield, in this situation, to the homeowner’s interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.”
The expressive interest in stealing the sign (which I’ll grant you, though it’s a very slight expressive interest) doesn’t just yield to the homeowner’s interest in private property. It also yields to the homeowner’s interest in expression. There are boundaries to the limits of the heckler’s veto, and vandalism is one of them — not just because it is an interference with someone’s private property, but because we recognize it as an unreasonable interference with the original speaker’s right to expression.
And that’s a way in which the act of vandalism can be accurately described as “un-American”, because it does interfere with the homeowner’s right to free expression.
Paul Horwitz - November 5, 2012 at 12:45 pm
Howard, I sympathize with the criticism of the usefulness of calling things “American” or “un-American,” which is really just a way of asserting a contested point and thus doesn’t do anything other than rhetorical work. And it is true that destroying someone else’s property or suppressing someone else’s speech can be viewed as symbolic speech or expressive conduct. But I don’t think that makes it “counterspeech,” properly viewed. At least in my understanding, the purpose of counterspeech is to provide a rival argument or point of view while leaving in existence the speech to which one is reacting, thus allowing observers to consider and judge both arguments or forms of speech. In your article, if I recall correctly, you criticize statutes preventing the destruction of the flag. But usually one destroys one own’s flag, thus conveying a different message than that provided by other flag owners and establishing a kind of argument that onlookers may use to compare and judge. Simply suppressing someone else’s speech altogether, at least if it’s done successfully, is different. It may be expressive action, but it seems far afield from Brandeis’s classic statement that the remedy for evil speech is more speech, not less.
Shag from Brookline - November 5, 2012 at 2:19 pm
Consider this:
“Brandeis’s classic statement that the remedy for evil speech is more speech, not less.”
from the standpoint of Buckley conjoined with Citizens United. Would Brandeis have considered money as speech? While the Koch-heads and Adelson can “speak” with millions of dollars, how can those without such funds counter-speak? There may be no meaningful remedy.
Howard Wasserman - November 5, 2012 at 4:30 pm
Andrew: A heckler’s veto only arises if the government steps in to stop the opposing speech. The First Amendment protects the right of one speaker to shout down or shut up another, subject to other, non-First Amendment limits, such as (here) private property.
Paul: Yes, which is why the stealing of the sign is not protected and any First Amendment defense would (and should) fail. But that does not diminish, I think, the expressive value of the initial act.
As for what constitutes counter-speech–again, I believe it includes shutting someone up or shouting them down (which is, essentially, what happened here). In the article, I gave as an example the scene is “Casablanca,” where the bar patrons sing “Le Marseillaise” more loudly than the Germans, causing them to stop singing.
Shag from Brookline - November 5, 2012 at 4:34 pm
Can speech in the form of money be shouted down by speech without money?
marfa - November 5, 2012 at 4:46 pm
I have to agree with A.J. here — this is a truly over-intellectualized position that, even if successful in a legal proceeding, seems to have net-negative social utility. I also don’t understand your comment, just above, on the heckler’s veto. Isn’t it true that as a matter of not of first amendment prohibition or permission, but of first amendment value, we shouldn’t want to see the heckler’s veto succeed? Its ability to successfully silence speech says nothing good about the actual practices of political speech. So, too, does (1) the incidence of yard-sign theft (or other forms of speech-silencing) and (2) our willingness to trot out legal technicalities to justify such acts.
Orin Kerr - November 5, 2012 at 5:26 pm
Howard, imagine a police officer arrests someone and throws him in jail for criticizing the police. Is making the arrest and throwing the person in jail an example of “counter-speech” because it is an expressive act by the police officer about his view of the criticism and the merits of criticizing police officers?
Howard Wasserman - November 5, 2012 at 6:41 pm
Since the government (and government officers acting under color of law) has no “rights” viz a viz an individual, it ceases to be an expressive act. It is an exercise of government authority that, in all likelihood, violates the First Amendment.
Marfa: Again, this position will not succeed in a legal proceeding and I have never suggested otherwise.
Finally, this is not a hecker’s veto. A heckler’s veto occurs when *government* acts to stop the speech as a way of protecting the sensibilities of those private individuals who object to the speech.
Brett Bellmore - November 6, 2012 at 6:26 am
I think I’m sticking by by position: Anybody who thinks stealing campaign signs qualifies as a speech act, AT ALL, probably also thinks War is Peace and Slavery is Freedom.
Because Censorship is Speech is a slogan only Big Brother would write.
Joe - November 6, 2012 at 10:21 am
Stealing signs is a “speech act” of sorts but so is various other things rightly illegal. Every “speech act” isn’t allowed. Freedom of speech has some limit. This is part of our system of government, our “American” system & stealing is in that respect ‘unamerican’ as would let’s say a campaign worker violating the sanctity of the proverbial ballot box by “speaking” aloud who I voted for.
jpe - November 7, 2012 at 2:09 pm
Stealing signs is speech suppression, not speech generation, hence its status as unamerican or counter to free speech.
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