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What rights would be violated by laws restricting your gestures in the US?

Examples:

  • A law forbidding the US Military salute
  • A law forbidding "dabbing" (making "a gesture in which a person drops their head into the bent crook of a slanted, upwardly angled arm, while raising the opposite arm out straight in a parallel direction")
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    In fact, in Germany (and others) some gestures are banned because they are symbols of unconstitutional organisations, see here and here Commented Mar 9, 2022 at 17:09
  • Comments are not for extended discussion; this conversation has been moved to chat. Commented Mar 9, 2022 at 20:04
  • What's going on with all these downvotes? Commented Mar 9, 2022 at 21:15

1 Answer 1

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In the United States, the First Amendment generally protects your right to communicate using gestures.

Probably the most common example of efforts to outlaw specific gestures involves the "middle finger," which is a symbolic "fuck you" to its target. The U.S. Supreme Court acknowledged in W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943), that symbolic gestures can be "a form of utterance" protected by the First Amendment right to freedom of speech, and it addressed the middle finger specifically in a decision last year.

In Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021), a school suspended a student from its cheerleading team because she posted a picture to social media showing her and a friend "with middle fingers raised" (and bearing the caption "Fuck school fuck softball fuck cheer fuck everything."). But the Supreme Court held that this violated her right to free speech, as her post "did not involve features that would place it outside the First Amendment’s ordinary protection. That decision aligned neatly with decades of lower-court decisions holding the same. E.g., Bad Frog Brewery v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) ("Sandul's action was not fighting words and therefore was speech protected by the First Amendment.").

Of course, First Amendment protectiosn are not absolute, so although the government almost certainly could not criminalize dabbing itself, it would be easier for a governmental body to prohibit it during its public meetings, easier still for a government employer to justify disciplining a working for dabbing, and easier still for a public school to justify disciplining a student for dabbing.

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