Symbolic Speech and Expressive Conduct Under the First Amendment

The Bill of Rights consists of the first ten amendments to the Constitution. The Framers established them to protect individual civil rights and limit the power of government. The language of the First Amendment reflects these democratic ideals.

Its free speech clause reads:

“Congress shall make no law… abridging the freedom of speech…”

Therefore, the right to free speech begins as a prohibition on Congress, our federal legislature. In other words, Congress may not pass laws that infringe upon our constitutional right to free speech.

Through the passage of the Fourteenth Amendment and the doctrine of incorporation, the Supreme Court has determined that this prohibition applies to all government action that restricts speech. It can be of any kind and at any level.

Also known as state action, government action can take many forms, including criminal convictions, federal agency funding, public school policies, and local ordinances.

Application of the First Amendment

The First Amendment mainly applies to government regulation of private speech. It doesn’t limit government regulation of government speech or speech restrictions imposed by private entities. For example, private property owners may generally set rules restricting speech on their property without raising First Amendment concerns.

Therefore, our constitutional freedom of speech functions as a restriction on the government’s ability to regulate speech and the free exchange of ideas.

Unprotected Speech

However, the right to free speech isn’t absolute. As the ultimate interpreter of the Constitution, the Supreme Court has established a limited number of unprotected speech categories. They include:

• Defamation
• Fighting words
• True threats
• Obscenity
• Child Pornography
• Inciting speech
• Fraud

This means the government can typically regulate and penalize certain forms of speech. However, not every regulation of unprotected speech is constitutional, and not all restrictions on protected speech are unconstitutional.

Legal Standards

The Supreme Court has developed legal standards and frameworks for determining whether a speech restriction violates the First Amendment.

These standards typically weigh the governmental interest served by the restriction against the First Amendment freedoms burdened by it. We commonly refer to government interests in this context as state interests.

Strict scrutiny is the most difficult standard to meet. It requires a speech restriction to serve a compelling state interest in the least restrictive manner available.

Content-based restrictions are typically subject to strict scrutiny. This is because free speech rights were founded upon the democratic principle that the government shouldn’t control which topics and opinions enter the marketplace of ideas.

Expression as Speech

Ideas, however, are seldom communicated through speech alone. People often convey their views and ideas in a variety of ways, including:

• Writing
• Picketing
• Distribution of pamphlets/literature
• Sit-ins/Stand-ins
• Wearing or displaying messages
• Door-to-door solicitation
• Flag burning  

As a result, the Supreme Court has determined that the First Amendment protects symbolic speech or expressive conduct. However, this protection only applies to conduct that’s inherently expressive. Merely combining conduct with speech doesn’t “transform conduct” into speech.

Restrictions on Symbolic Speech and Expressive Conduct

The government generally has more latitude in restricting expressive conduct or speech-plus conduct than it does with pure speech. In the context of such restrictions, the government often cites state interests like public safety and order as necessitating regulation.

For example, municipalities tend to have local ordinances restricting the time, place, and manner of parades on public streets. As long as these time, place, and manner restrictions are content-neutral, the courts will generally uphold them.

Restrictions on pure speech are sometimes justified when their focus is on the non-content aspects of the speech.

For example, the Saia v. New York (1948) Court held that the noise aspect of loud speech may be subject to regulation. Similarly, the state may regulate the littering aspects of disseminating literature, like pamphlets.

Supreme Court Cases

The Supreme Court’s free speech cases on symbolic speech and expressive conduct under the First Amendment provide invaluable insight into the doctrine of free expression.

Stromberg v. California

In Stromberg v. California (1931), the Court reviewed Yetta Stromberg’s conviction for flying a red flag in support of Russia and the Communist Party.

Stromberg was convicted under a California law criminalizing the public display of a red flag “as a sign, symbol or emblem of opposition to organized government.”

The Court determined that First Amendment speech protections extend to expressive conduct or symbolic speech. Accordingly, it reversed Stromberg’s conviction as unconstitutional.

Terminiello v. Chicago

Early Supreme Court cases regarded protests and picketing as expression protected by the First Amendment. However, they didn’t develop the distinction between First Amendment protections implicated by pure speech and those implicated by speech plus conduct.

Like Terminiello v. City of Chicago many of these cases addressed the disruptions, or fear thereof, that accompanied expressive conduct. In Terminiello, the Court reversed a breach of the peace conviction for a provocative activist arrested for the violence that erupted during one of his speeches.

Brown v. Louisiana

The Court noted in Brown v. Louisiana (1966) that the First Amendment rights to free speech and assembly aren’t limited to verbal expression. They “include the right in a peaceable and orderly manner to protest by silent and reproachful presence.”

United States v. O’Brien

In United States v. O’Brien (1968), the Court reviewed a federal law banning military draft-card burning. In doing so, it established intermediate scrutiny as the applicable standard for evaluating restrictions on expressive conduct and developed the O’Brien test.

The test requires the state's interest in curbing the nonspeech element to be:

• Unrelated to the suppression of free speech or expression and

• Strong enough to justify the incidental restriction on protected expression which

• “No greater than is essential to the furtherance of that interest”

Applying the test, the Court determined the state interest in people holding onto their draft cards was sufficiently important. It also determined the law was narrowly tailored to prohibit draft-card burning only. It didn’t restrict any other First Amendment rights and wasn’t broader than necessary.

The Court upheld the law.

Tinker v. Des Moines

In the landmark Tinker v. Des Moines Independent Community School District (1969) case, the Court struck down a public school district policy as unconstitutional. The policy prohibited students from wearing black armbands that symbolized opposition to America’s involvement in the Vietnam War.

After John and Mary Beth Tinker and other students wore the armbands to school, they were suspended. The students challenged the suspension as a violation of their First Amendment rights.

The Court affirmed the power of public schools to regulate and control student conduct consistent with constitutional protections. As such, public school restrictions on speech must be implemented for reasons beyond “a mere desire to avoid the discomfort and unpleasantness that always go with an unpopular viewpoint.”

Those reasons must establish that the expression or conduct would substantially disrupt or materially interfere with the school's operation or the rights of others. Fear or concern that such an interference or disturbance will occur is insufficient.

The Tinker case is well-known for recognizing the First Amendment free speech rights of students in public schools.

Cohen v. California

In Cohen v. California (1971), the Court overturned a breach of the peace conviction. Paul Cohen was arrested when he went to a California courthouse wearing a jacket with the words, “Fuck the Draft.”

The Court noted that the messaging didn’t meet the definition of obscenity, or fighting words, or any other unprotected form of expression.

It also determined that the state's interest in preserving public morals based on the socially objectionable character of the profanity was insufficient. In its decision, the Court affirmed that the First Amendment protects even offensive expression.

Spence v. Washington

In Spence v. Washington (1974), the Court upheld Omand Spence’s First Amendment rights to free expression.

Spence taped peace symbols to his American flag and flew it upside down on his private property. He was arrested and convicted under a state law that banned displaying the flag with anything affixed to it or superimposed on it.

The Court held that Spence’s actions were a form of communication intended to express an idea.

Considering Spence’s private actions and the fact that he didn’t damage the flag, the Court determined that his conduct was an expression protected by the First Amendment.

It also established the Spence test to determine whether protection extends to expression. It requires:

• Intent to communicate a particular message

• High probability that a particular message will be understood by those who view it

Chief Justice Burger dissented, contending that each state should be able to determine how to legislate protection of the state and national flags.

The assumption underlying the Spence majority decision was that the state had a legitimate interest in safeguarding the flag's physical integrity as a valued national symbol.

Clark v. Community for Creative Non-Violence

The Court upheld a National Park Service restriction on overnight sleeping in certain areas of public parks in Clark v. Community for Creative Non-Violence (1984).

The Clark Court determined the time, place, and manner restriction didn’t impermissibly encroach upon the symbolic speech rights of members of the Community for Creative Non-Violence. The group wanted to sleep in prohibited areas to protest homelessness.

However, the Court determined that the state’s interest in preserving park conditions was sufficient, and that the protestors had alternate ways of communicating their message.

Texas v. Johnson

In 1989, the Texas v. Johnson Court rejected the assumption underlying the Spence decision. The Texas v. Johnson Court affirmed flag burning as a type of symbolic speech protected by the First Amendment.

Gregory Johnson was convicted under a Texas law prohibiting flag desecration if it was likely to incite anger in others.

In a narrow 5-4 majority, the Court clarified that the First Amendment speech protection extends to actions society may find offensive. Public outrage alone doesn’t justify the suppression of free expression. The Court also noted that the state law was unconstitutionally content-based and constituted viewpoint discrimination.

Justice Stevens penned a dissent, contending that the American flag’s unique status as a symbol of the country’s unity outweighed First Amendment protections for symbolic speech.

United States v. Eichman

Likewise, the Court struck down the 1989 Flag Protection Act in United States v. Eichman (1990). The Eichman Court explained that the federal law banning flag desecration was unconstitutional.

The Court explained that the Act wasn’t designed to protect the flag’s physical integrity. Rather, it sought to regulate the “communicative impact” of certain expressive conduct that others found offensive. Such a restriction seeks to suppress free expression and thus violates the First Amendment.

The Supreme Court analyses of government restrictions on symbolic speech indicate shifts in the Court’s jurisprudence regarding free expression. This body of caselaw also reveals discordant views among the Justices, particularly respecting government regulation of flag burning. As we increasingly express ourselves digitally, we can almost certainly expect continued robust discussion surrounding the relevant interests at play.