Musings: Is Existing as a PWD a form of Free Speech?

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!

6 thoughts on “Musings: Is Existing as a PWD a form of Free Speech?

  1. I’m not sure if simply existing in the public sphere constitutes “speech”, but if it does, then I’m practically shouting these days :D.
    (Just started University again this week with accommodations and all the teachers have been informed and some of the students also seem to have picked up the info already. Because I’m pretty sure I’ve already heard a couple of them talking about it literally behind my back >_>).
    Norah´s last blog post ..You are what

  2. My disabilities are invisible – fibromyalgia, arthritis, and severe lower back pain. So the only time anyone knows I have disabilities is when I’m using my walker or when I use the mobility carts in stores. The problem with that is that I’m also fat, so the first assumption they make is not that I’m disabled, but that I’m a fat, lazy cow. I’ve actually heard people say this in stores, and being the out-spoken kind of person I’ve become over the years, I’ve confronted them on their bigotry with the comment “You can’t tell by looking at me why I’m fat or whether I’m disabled or not. Now, if you’d like me to walk all through this store, fine, but you had better be prepared to find a forklift to pick me up off the floor when I collapse because my back/knees gave out on me from walking too much.” That usually shuts them up – they can’t believe that someone will actually admit to being so fat that it will take more than one person to help her up off the floor if she falls (and at 377 lbs, it would take at least 3 people to help me up, if I’m in a lot of pain). Talk about exercising my right to free speech, I do it when it comes to setting people straight about fat and disability.

  3. What an interesting idea! It brings to mind someone getting a tattoo of “disability pride,” someone decking out their wheelchair or cane in stickers, inviting looks, or someone who is visibly disabled getting a lot of piercings and dying their hair. The message being, “look at me! I am here!”

  4. Freedom of speech also carries with it the freedom not to speak. When we substitute “existing publicly as a PWD” for speech, it follows that you also have the right to not exist publicly as a PWD – in other words, the government does not have the right to force you to disclose your disability any more than it could force you to hide it.

    That could, in theory, put holes in a lot of the onerous requirements for getting disability benefits.

  5. ooh, Heather, that’s really interesting. the right to not speak could do a lot of work for the rights of PWD – i’m thinking of it not only in terms of requirements to disclose a disability, but in terms of changing societal structure so that PWDs were not required to “speak” this way just by leaving their houses. by normalizing and integrating PWDs to the point where their mere existence wouldn’t carry such a charged message.

    and as Sasha Feather says, there are ways to amplify the “volume” of the “speech” by adding stickers, being more visible, etc. and i think this has helped me reframe the feeling that can come from being out all day and suffering the endless stares and gawking and whispers and discomfort and all of that – instead of being battered by ableist society, that PWD has been protesting – strong and loud and undeniably – by “speaking” like this all day long. that helps me reassign the agency to the PWD rather than seeing it as being subject to the actions of society.

    thanks for your feedback – this is a really interesting topic!

  6. interesting conversation 🙂

    i dont have the relative privilege of “not speaking”, in terms of the parts of my disabilities that sighted folks can perceive. Its just out there, theres no choice (unless i choose to stay in my apartment all day). It doesnt feel like a radical act to me (though its certainly a defiant one), im just getting groceries, yknow? There are parts of my disabilities that are not necessarily visually perceptible, and those i have more degree of choice about disclosing. Sometimes its obvious anyways. But usually sighted people are so busy basing their perceptions of me on what they see in front of them, that me speaking to other things doesnt really seem to matter. im curious about this idea of existing as a PWD who others perceive of that way being “speech”. Hm.

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