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Posted By Howard Wasserman On November 4, 2012 @ 11:16 pm In Uncategorized | 17 Comments
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.
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URL to article: http://www.concurringopinions.com/archives/2012/11/stealing-signs.html
URLs in this post:
 symbolic counter-speech: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=461560
 Barnette: http://scholar.google.com/scholar_case?case=8030119134463419441&hl=en&as_sdt=2&as_vis=1&oi=scholarr
 Supreme Court has recognized as uniquely important: http://scholar.google.com/scholar_case?case=3859249994867287155&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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