Under what circumstances have the courts allowed symbolic speech to be regulated?

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Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag).
  West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
  Tinker v. Des Moines, 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages.
  Cohen v. California, 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns.
  Buckley v. Valeo, 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions).
  Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest).
  Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action.
  Brandenburg v. Ohio, 395 U.S. 444 (1969).
• To make or distribute obscene materials.
  Roth v. United States, 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest.
  United States v. O’Brien, 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration. 
  Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event.
  Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event.
  Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

Abstract

The doctrine of symbolic speech holds that some conduct, for example flag burning, may be sufficiently communicative to warrant First Amendment protection. What conduct constitutes symbolic speech, however, has been a vexing question. Spence v. Washington established a test to guide this inquiry, requiring courts to examine the actor's intent, the likelihood of audience understanding of the message being communicated, and the context of the activity. The traditional conception of "Spence" has ostensibly focused on the actual intent of the actor and on the case-specific facts at issue. This Note argues for a new understanding of symbolic-speech jurisprudence. It contends that the actual intent of the actor is not an independently relevant factor in the "Spence" analysis and, to the extent that intent is relevant to the inquiry, it is imputed intent that matters. Furthermore, this Note argues that courts tend not to address the facts in a symbolic-speech case at the case-specific level, but rather approach the issue at a much broader level of generality. This broad inquiry entails grouping the conduct at issue together with other similar conduct and investigating the traditional social meaning of those categories of conduct. Viewed at this level of generality, the second and third "Spence" factors of audience understanding and context are largely conflated. Finally, this Note investigates the extent to which this reconceptualization of the symbolic-speech analysis can serve as a predictive model for future cases.

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