Professor G. Alex Sinha · November 2021
89 Geo. Wash. L. Rev. Arguendo 133
Ivan Hunter, a leader of the right-wing Boogaloo Bois, recently pleaded guilty to participating in a riot when he fired his AK-47 at the Minneapolis Police Third Precinct during a Black Lives Matter protest in May of 2020. Hunter’s target—the home base of Derek Chauvin, the officer captured on video killing George Floyd—burned down at the hands of protesters the same evening. This Essay argues that Hunter’s conduct is best understood as symbolic speech under the First Amendment, a conclusion few analyses would bother to reach because such speech would still be categorically excluded from First Amendment protection. Hunter’s actions are not only more fully comprehensible as speech, but they also serve as an exemplar of an undertheorized category: dishonest symbolic speech. Indeed, through his violence rather than through words, Hunter trafficked in a powerful form of political propaganda. Drawing on this remarkable yet increasingly representative case, the Essay offers two critiques of First Amendment jurisprudence. First, relying on the First Amendment to identify speech artificially impedes our ability to classify and process communicative events of substantial public consequence, especially as public concern grows about the spread of misinformation. Second, the underappreciated power of symbolic speech to spread lies offers a new and significant basis for skepticism about the longstanding doctrinal distinction between pure and symbolic speech.
