Symbolic Speech

• Author: Melville B. Nimmer
• Pages: 2630-2632

Page 2630

Does communication by conduct rather than by words constitute "speech" within the FIRST AMENDMENT'S guarantee of FREEDOM OF SPEECH ? The status of communicative conduct, as with most free speech questions, is usually presented in an emotion-laden context: does the burning of a flag, or of a draft card, constitute a First-Amendment-protected activity? Is the act of marching in a public DEMONSTRATION (as distinguished from the placards which the marchers carry) a form of protected "speech?" Are school or other governmental regulations of hair styles an abridgment of freedom of speech? Does nude dancing constitute a form of First Amendment "speech?" Although the lower federal and state courts frequently have wrestled with all of these questions, the United States Supreme Court has yet to articulate a theoretical base that explains the status of symbolic speech under the First Amendment.

At least since STROMBERG V. CALIFORNIA (1931), the Supreme Court has assumed that "speech" within the meaning of the First Amendment's guarantee of "freedom of speech" includes more than merely verbal communications. In Stromberg the Court declared invalid a California statute that prohibited the public display of "any flag, badge, banner or device ? as a sign, symbol or emblem of opposition to organized government." Among other decisions applying the First Amendment to nonverbal conduct, perhaps the most striking was TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969). The Court there upheld the right of high school students to wear black armbands as a protest against American participation

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in the VIETNAM WAR, calling their conduct "the type of symbolic act that is within the Free Speech Clause of the First Amendment."

But if conduct sometimes constitutes protected "speech," sometimes it does not. UNITED STATES V. O ' BRIEN (1968) affirmed a conviction for draft card burning. Chief Justice EARL WARREN, speaking for the Court, answered the defendant's symbolic speech defense by opining, "We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech' whenever the person engaging in the conduct intends thereby to express an idea."

Any attempt to disentangle "speech" from conduct that is itself communicative will not withstand analysis. The speech element in symbolic speech is entitled to no lesser (and also no greater) degree of protection than that accorded to so-called...