Heckler's veto

[Lynne Henderson]

RE: Heckler's vetoI mentioned the cf to the pornnography debate because the
issue of the emotional  and behavioral impact of visual communications
rather than printed or even spoken words differed based on the social
science evidence.  The dissents in *Johnson* allude to the emotional realm
of seeing the flag burned. Questions about the confederate battle flag and
the Nazi flag also have entailed a component of emotive impact.  The re may
be absolutely no principled way to distinguish visual, non-verbal
communication from verbal,  even given the growing empirical evidence that
the mind processes the infomation differently and that the non-cognitive
aspects undermine some of the assumptions behind protecting "speech" (as any
advertising company is well aware).   At the same time, I don't think it
renders the question non-problematic and was curious to know if anyone had
thought about the relationship of the visual to the rationales for
protecting communication recently.  (Easterbrook in *Hudnut* for example
accepts for the purposes of his decision  the power of pornography as a
reason to protect it as virutally political speech)

[Lynne Henderson]
 rom: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Volokh, Eugene
Sent: Friday, October 27, 2000 10:50 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Heckler's veto


          Lynne asks an excellent question, but one that fortunately has a
clear answer.  Free speech includes the rights to communicate through
visuals; see, e.g., Stromberg v. California (1931) (display of flag
protected); Schacht v. United States (late 1960s) (wearing of uniform
protected); Kingsley Books v. Board of Regents (late 1950s) (movies
protected); Erznoznik v. City of Jacksonville (1975) (drive-in screens
visible from the road protected, even when displaying nudity); Texas v.
Johnson (1989) (flagburning protected).  And of course the Court has
specifically held that the emotive impact of speech *is* constitutionally
protected, most famously in Cohen v. California (1971), but of course
implicitly also in Texas v. Johnson and many other cases.

          Of course, not all pictures are constitutionally protected --
pictures that fall within the narrow category of obscenity are not
protected, just as words that fall within that category aren't protected,
either.  (Textual obscenity is punishable so long as it fits within the
Miller test.)  But of course the pictures in this case did not fall within
the narrow obscenity exception, because they didn't appeal to the prurient
interest and because they had serious political value.

          So the bottom line:  Pictures are treated pretty much the same way
as words, and the emotive impact of speech is protected alongside the
reasoned impact.

  Lynne Henderson writes:

    II'd love to know more about how these pictures have been handled by
courts myself. It seems to me that this is a case which raises issues
decisions have elided--are pictures "words"?  Lest that seem a ridiculous
question,  the emotive impact of the visual is such that it  conflicts with
the notion of reasoned debate, marketplace of ideas notion. The emotional
effect of pictures of aborted fetuses is of course exploited because it *is*
effective communication.   A  cf is to the pornography debate.


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