Cecily Zamora
The First Amendment to the US Constitution protects free speech, including expressive conduct or symbolic speech. Expressive conduct is behaviour designed to convey a message and is protected by the First Amendment. This includes non-verbal activities such as wearing an armband with a peace symbol, burning the US flag, or participating in a silent stand-in at a segregated library. When faced with legislation that infringes on expressive conduct, the Supreme Court assesses whether the regulation is aimed at the expressive or nonexpressive aspects of the conduct. The Court has ruled that conduct is protected by the First Amendment if it intends to convey a particular message and is likely to be understood by viewers.
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What You'll Learn
Expressive conduct and the First Amendment
Expressive conduct, sometimes referred to as symbolic speech, is behaviour designed to convey a message and express opinions. It includes nonverbal activities that convey ideas, such as wearing an armband with a peace symbol, burning the US flag, or participating in a silent stand-in protest. These actions are considered expressive conduct because they are imbued with elements of communication and contribute to societal debate. The First Amendment's protection of free speech extends to expressive conduct, as recognised by the Supreme Court.
The First Amendment to the US Constitution protects the right to free speech, prohibiting Congress from passing laws that infringe upon this right. This protection extends to symbolic speech or expressive conduct, as affirmed in various Supreme Court cases. For example, in Stromberg v. California (1931), the Court struck down a California law prohibiting the display of a red flag as a sign of opposition to the government, recognising it as a violation of the free-speech clause of the First Amendment.
When determining whether expressive conduct is protected by the First Amendment, courts often apply a two-part test. Firstly, there must be an intent to convey a particular message, and secondly, the message must be likely to be understood by listeners or viewers. This was established in Spence v. Washington (1974), where the Supreme Court held that the First Amendment protects the right to desecrate the American flag as a form of symbolic protest.
In United States v. O'Brien (1968), the Court addressed the issue of expressive conduct in the context of draft card burning. While recognising that burning a draft card was expressive conduct, the Court also acknowledged that the state had valid reasons unrelated to expression for preventing it. This case established the four-part O'Brien test to determine when a law restricting expressive conduct is constitutional. The test considers whether a government regulation is within its constitutional power, furthers a substantial governmental interest, is unrelated to the suppression of free expression, and has only incidental restrictions on First Amendment freedoms.
The Supreme Court has also addressed expressive conduct in the context of public schools. In Tinker v. Des Moines Independent Community School District (1969), the Court struck down a policy prohibiting students from wearing black armbands symbolising opposition to the Vietnam War. The Court affirmed the power of public schools to regulate student conduct while also recognising the importance of protecting students' First Amendment rights.
In conclusion, expressive conduct is an important aspect of free speech protected by the First Amendment. The Supreme Court has consistently upheld the right to engage in expressive conduct, even when it may be considered offensive or controversial. The Court has established tests and standards to determine when restrictions on expressive conduct are justified, ensuring that individuals' rights to express their opinions and participate in societal debate are protected.
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Symbolic speech
The concept of symbolic speech recognises that communication of political, economic, and social views is not limited to verbal or written forms of expression. It includes activities such as picketing, marching, distributing leaflets and pamphlets, door-to-door solicitation, flag desecration, and draft-card burnings.
The Supreme Court has played a significant role in shaping the understanding and protection of symbolic speech. In Stromberg v. California (1931), the Court struck down a California law that prohibited the display of a red flag as a symbol of opposition to the government, recognising that such symbolic expression is protected by the First Amendment. The Court further clarified the scope of symbolic speech in Tinker v. Des Moines Independent Community School District (1969), where it ruled that a school district policy prohibiting students from wearing black armbands to symbolise opposition to the Vietnam War was unconstitutional.
The Court has also developed tests to determine whether certain conduct qualifies as symbolic speech protected by the First Amendment. The Spence test, established in Spence v. Washington, consists of two prongs: the action must have an intent to convey a particular message, and the surrounding circumstances must make it likely that the message will be understood by viewers. This test was affirmed in Texas v. Johnson, a case that affirmed flag burning as a form of symbolic speech protected by the First Amendment.
While the First Amendment protects symbolic speech, it is not absolute. The O'Brien test, outlined by Chief Justice Warren in United States v. O'Brien, provides guidelines for determining whether a law restricting speech violates the First Amendment. The test considers whether the law is within the Constitutional power of the government, furthers a substantial government interest unrelated to the suppression of speech, and prohibits no more speech than is essential to that interest.
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Non-expressive conduct
The distinction between expressive and non-expressive conduct is important in US law, particularly in determining whether certain actions or behaviours are protected by the First Amendment. Courts often apply a two-part test to determine whether conduct is expressive and thus deserving of First Amendment protection. Firstly, it must be established that the speaker or actor intended to convey a particular message. Secondly, the message must be one that is likely to be understood by listeners or observers.
In United States v. O'Brien (1968), the Court addressed the distinction between expressive and non-expressive conduct in the context of a law prohibiting the burning of draft cards. The Court recognised that burning a draft card could be considered expressive conduct as it conveys a message that is likely to be understood by others. However, the Court also acknowledged that there could be valid reasons unrelated to expression for the state to prohibit such conduct, such as maintaining public order or preventing potential harm.
Another example of the Court's interpretation of non-expressive conduct can be seen in Clark v. Community for Creative Non-Violence (1984). In this case, the Court upheld a Park Service restriction on overnight sleeping, even when the demonstrators wished to bring attention to the issue of homelessness. The Court drew a line between expressive conduct, which is protected by the First Amendment, and non-expressive conduct, which does not inherently convey a message or contribute to societal debate.
It is important to note that the interpretation of non-expressive conduct can be nuanced and may depend on the specific context and circumstances of each case. Additionally, the Supreme Court has also addressed the use of symbols as a form of speech, further complicating the distinction between expressive and non-expressive conduct. In cases such as Stromberg v. California (1931) and Tinker v. Des Moines Independent Community School District (1969), the Court struck down laws prohibiting the display of certain symbols, recognising that these symbols could convey a political message and thus warranted First Amendment protection.
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The Supreme Court's treatment of expression
The First Amendment to the US Constitution protects the right to free speech. The Supreme Court has interpreted this to include symbolic speech and expressive conduct, which can include actions such as picketing, marching, sit-ins, and flag desecration.
The Court has ruled that the First Amendment's protection of free speech is not limited to verbal or written expression, but also extends to actions that send a symbolic message. This was demonstrated in the case of Texas v. Johnson and other cases, where the Court found that burning a flag is a form of expressive conduct protected by the First Amendment.
In determining whether expressive conduct is protected by the First Amendment, the Court considers the intent of the speaker and whether the message is likely to be understood by listeners. The Court has also clarified that the First Amendment protects speech that others may find offensive, as in the case of United States v. Eichman (1990), where the Court struck down a federal law banning flag desecration.
The Supreme Court has also addressed the issue of government restriction on speech. The Court has ruled that Congress may not pass laws that infringe upon the constitutional right to free speech. This prohibition applies to all government action that restricts speech, including in public schools. For example, in Tinker v. Des Moines Independent Community School District (1969), the Court struck down a school district policy prohibiting students from wearing black armbands in protest of the Vietnam War, finding that the restriction on speech was not justified.
However, the Court has also recognized that some restrictions on speech may be necessary in certain contexts, such as in the military or in prisons. In Parker v. Levy (1974), the Court affirmed the government's broad power to restrict the speech of military officers. The Court has also allowed restrictions on student speech in certain instances, such as when it involves drugs, offensive language, or school-operated newspapers.
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Legislation that infringes on expressive conduct
Expressive conduct refers to behaviour designed to convey a message and is considered a form of speech protected by the First Amendment. When determining whether expressive conduct falls under the protection of the First Amendment, courts often apply a two-part test. Firstly, the speaker must intend to convey a particular message, and secondly, the message must be one likely to be understood by listeners.
In United States v. O'Brien (1968), the Court addressed a law prohibiting the burning of a draft card. The Court recognised that burning a draft card was expressive but pointed out that there were valid reasons, unrelated to expression, for why the state had an interest in preventing it. This case established the four-part O'Brien test to determine when a law restricting expressive conduct is constitutional.
In Tinker v. Des Moines Independent Community School District (1969), the Court held that black armbands worn by students to protest the Vietnam War were symbolic speech entitled to First Amendment protection. The Court affirmed the power of public schools to regulate and control student conduct, but only if it substantially disrupts school operations or interferes with the rights of others.
In Stromberg v. California (1931), the Supreme Court struck down a California law prohibiting the display of a red flag as a sign of opposition to the government, deeming it a violation of the free speech clause of the First Amendment.
In Texas v. Johnson (1989), the Court recognised the burning of an American flag as speech and held that the state could not prohibit this action based on its message or its tendency to cause breaches of the peace.
In Anderson v. City of Hermosa Beach (2010), the court ruled that tattooing was a form of free speech under the First Amendment, striking down a city's ban on tattoo parlours.
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Frequently asked questions
Expressive conduct, sometimes referred to as symbolic speech, includes nonverbal activities that convey ideas. This can include actions alone, without the use of recognisable symbols.
The First Amendment protects individuals' right to free speech. This protection extends to expressive conduct, which has increasingly been recognised as a form of speech. In determining whether expressive conduct is protected, courts often apply a two-part test: firstly, the speaker must intend to convey a particular message, and secondly, the message must be one likely to be understood by listeners.
Examples of expressive conduct include wearing an armband with a peace symbol, burning the US flag, sit-ins, freedom rides, picketing, marching, and the distribution of leaflets.
