These are some things I’ve been thinking about, but haven’t yet figured out where this train of thought is leading, or what it might connect to, or what conclusions I might end up with. I’m writing this to see if virtually talking it out can help me think through it further, or hoping it will spark some ideas or brilliance in one of you! This is not meant to be an authoritative statement on these issues and there may be glaring issues I’m overlooking! I’m just hoping to have a good discussion about it.
Recently, the federal circuit court in California heard a case about whether the city of Hermosa Beach could ban tattoo shops entirely. The plaintiff – a man who wanted to open a tattoo shop in the city – argued that the ban was an impermissible restriction of his free speech rights. The court wrote a long decision (pdf) considering not whether having a tattoo was something protected by the First Amendment, but whether the actual act of tattooing someone was conduct with sufficient expressive content to be considered as speech. So the court was thinking about whether the act of giving someone a tattoo counts as speech – if the tattoo artist is the equivalent of a painter or a photographer and adding artistic judgment and content to the representation, or if they are more like a computer printer printing out text or images designed by someone else.
This meant the court spent a lot of time discussing the idea of “expressive conduct” – behavior that isn’t actually “speech” in that the person is not speaking words, but is behaving in a way that communicates a message or idea and so is protected the same way that speech is. In the United States, the Supreme Court has already considered a whole bunch of activities and determined that they should be protected the same way that speech is. For example, burning the United States flag, wearing a black armband to protest the Vietnam War, and nude dancing are all activities that aren’t directly speech, but convey a statement or message and so are protected the same way that speech is.
I started thinking about the idea of “expressive conduct” – behavior that conveys a message or statement – and was immediately struck by how existence as a person with a disability could be seen as expressive conduct. Using a wheelchair or cane or braces while out in public seems to me to express a statement: “I am a person with a disability, I exist, I share public space with you.” This is, as we’ve discussed here at FWD and many others have expressed, a radical statement, a powerful message. To me, it seems equivalent to the message expressed by wearing a black armband to protest a war – it is a political statement of resistance.
The law of expressive conduct recognizes that not every instance of the behavior is communicating an expressive message. If, for example, I had mini American flags as part of a table decoration and one fell into a candle and started burning while I wasn’t paying attention, that flag burning would not be sending the same message as intentionally burning a flag at an anti-war demonstration. My accidental flag burning would not be sending a message and so would not be protected as speech. Similarly, a PWD alone in their apartment likely isn’t sending any message or statement with the mere fact of their existence – they might be typing or painting or speaking and sending a message that way, but not simply by existing. So PWDs wouldn’t automatically “become” speech – only when their existence communicates a message.
I’m not entirely sure where that gets us. In First Amendment law, when conduct is considered speech because of its expressive content, it is protected by the First Amendment, which means that the government cannot restrict it without passing certain protective tests. So theoretically, arguing that disability is a form of speech would let PWDs argue that governmental restrictions on their presence are in fact restrictions on speech. But since the First Amendment only protects speech from restriction by the government, not from private businesses or in private life, I’m not sure that would add any protections that the Americans with Disabilities Act doesn’t already provide. So I’m not sure this analogy would be helpful in extending the existing legal rights of PWD.
I’m also unsure how people with invisible illnesses (like myself) fit into this analysis. My being in public does not automatically communicate to people that I exist as a PWD, because my disability status is not apparent from looking at me. So I don’t start communicating this message until I affirmatively disclose or mark my disability status.
I also wonder if this forcibly ascribes expression or speech to PWDs who do not think they are or want to express that radical message.
I don’t really have a strong conclusion to any of this – I’m still rolling it around in my head to see what if anything it turns into. But I like the idea of acknowledging that when PWDs with visible disabilities are engaged in sending a message as powerful as burning a flag.
What do you think? It’s ok if you don’t have a clear position one way or the other but just have thoughts or reactions!