Thursday, November 12, 2015

Mixed "Messy-ges": Symbolic Shite and the Fecal Fallout

Early in the history of this great nation, rabbles could be roused with a bit of inciting, symbolic expression. During the protests against the Stamp Act, colonists hung effigies of tax collectors, royal governors, and others. They conducted public processions portrayed by them as Funerals for Liberty, in which a coffin would be carried by the marchers, and in the moment of interment, to the cheers of the crowd, Liberty would rouse herself in her coffin and rise from British destruction.

These exercises were a powerful method of expressing the temper of the times. Use of hung effigies and resurrected Liberty communicated anger at injustice and pleas for rectification of wrongs as well as any words might do. With the rise of the new Nation, the States first, and then the federal government, embodied protections for the right to freedom of expression in their Constitutions.

Nearly two centuries later, the Supreme Court applied the right to freedom of expression to such symbolic acts. The early case did not result in a "win" for the symbolic speaker. That case, United States v. O'Brien, involved the act of burning draft cards. For O'Brien, burning his draft card was an act intended to express disapproval for America's involvement in Vietnam. The Court, while concluding that O'Brien's act did not satisfy the test it stated, explained that where an act was intended to convey a message (purposeful communication) and where the message was likely to be understood (discernible), it was entitled to First Amendment consideration.

In O'Brien, the Court stated that government restrictions that impinge on expression can pass constitutional muster if the restrictions are within the power of government to enact, are necessary to serve important government interests (such interest must be unrelated to suppressing speech), and are no broader than is necessary. The burnt draft card was considered a government document tied to the compelling government interest in maintaining a system of conscription for military service. The prohibition on damaging, defacing, or destroying the card did not limit itself to those acts done to express a message. In those circumstances, O'Brien's burning of the draft card, while expressive, violated a narrowly drawn statute that did not target expression.

After O'Brien, we got a glimpse of the kind of clash between a moment of symbolic expression and government imposition that would result in the Supreme Court finding a violation of the First Amendment. In another instance of Vietnam-era antiwar protest, the Tinker children attended school wearing black armbands to protest American involvement in the conflict. The Des Moines school district suspended the students. The Tinkers responded by suing the school district, a case that ultimately came to the Supreme Court.

In Tinker, while the School District stated that suspending the Tinkers served to prevent threat of disruption of the school's order and discipline, the Supreme Court concluded that the District's assertion did not rise to the level of a threatened "material and substantial disruption" of the school day. The Court did not even momentarily pause to consider whether the black arm bands were intended to express a message (opposition to the Vietnam war) or would reasonably be understood to communicate that message.

The preceding discussion simply sets the stage for this brief discussion of the current stink over an offal bit of symbolic expression. Among the purported incidents of racism at Mizzou to come to light this week is an incident involving the scrawling of a swastika on the wall of a dorm bathroom. While questions arose over whether the incident actually occurred, the campus police have produced a police report by one of its officers confirming that it did. The report list "bias/motivation" as "Anti Race."

Anti Race?

Which race?

Healthy poop, we've been told is brown, solid, and not overly odorous. What made the shitstika "anti Race?" More directly, what made the shitstika a bias crime against black students? Because of some other, unreported factor? It cannot be that the sole reason is that the swastika was brown in color ... most poop is brown in color. Was it because the restroom was shared by only black students? We'll have to await further developments.

Still, I wonder more than a bit whether this instance is one in which an intention to communicate a message existed at all and whether the intended message was correctly perceived by the students now claiming the swastika was evidence of racism on campus.

Given devotion of Neo-Nazis to the Third Reich, Adolph Hitler, and the Swastika, I seriously doubt that such individuals would profane the emblem by scrawling it with their feces. Sure, they might drop a deuce on the bathroom floor to inflict intimidation and offense on blacks or others, but so closely to connect a cherished emblem of their benighted cause to human offal just seems unlikely to me.