Symbolic Speech

Nonverbal gestures and actions that are meant to communicate a message.

The term symbolic speech is applied to a wide range of nonverbal communication. Many political activities, including marching, wearing armbands, and displaying or mutilating the U.S. flag, are considered forms of symbolic expression. The U.S. Supreme Court has held that this form of communicative behavior is entitled to the protection of the FIRST AMENDMENT to the U.S. Constitution, but the scope and nature of that protection have varied.

The Supreme Court first gave symbolic speech First Amendment protection in Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931). The Court overturned a California statute that prohibited the display of a red flag as a "sign, symbol or emblem of opposition to organized government." But not until the VIETNAM WAR era did the Court articulate the rules to be followed in determining whether symbolic expression is entitled to the protection of the First Amendment.

In United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the Court reviewed the conviction of David Paul O'Brien for violating a 1965 amendment to the Selective Service Act (50 U.S.C.A. App. §§ 451 et seq.) that prohibited any draft registrant from knowingly destroying or mutilating his draft card. O'Brien had burned his Selective Service card on the steps of the South Boston Courthouse at a rally protesting the Vietnam War. He claimed that his act of burning his card was symbolic speech protected by the First Amendment. The government argued that it could prohibit this conduct because it had a legitimate interest in requiring registrants to have draft cards always in their possession as a means of ensuring the proper functioning of the military draft.

The Supreme Court sided with the government, with Chief Justice EARL WARREN rejecting "the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express his idea." When "speech" and "nonspeech" elements are combined in the same course of conduct, a lesser burden will be placed on the government to justify its restrictions. Accordingly, the Court announced the appropriate constitutional standard:

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. Applying this test to the statute involved in O'Brien, the Court found the law constitutional.

A less defiant form of symbolic speech was extended constitutional protection during the Vietnam War. In TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), high school officials in Des Moines, Iowa, had suspended students for wearing black armbands to school to protest U.S. involvement in the Vietnam War. Justice ABE FORTAS, in his majority opinion, rejected the idea that the school's response was "reasonable" because it was based on the fear that the wearing of the armbands would create a disturbance. Fortas ruled that the wearing of the armbands was "closely akin to 'pure speech' which … is entitled to comprehensive protection under the First Amendment…" Public school officials could not ban expression out of the "mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint."

Political protesters have often used the U.S. flag as a vehicle to express opposition to government policies. During the Vietnam War era, the mutilation or burning of the flag became commonplace. Such actions angered many people, and legislation was passed at the state level to prohibit this conduct. In Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969), the Supreme Court had the opportunity to address the question of whether flag burning is entitled to constitutional protection as symbolic speech. However, the Court focused on the element of verbal expression also presented in this case and effectively avoided the symbolic speech issue. In a 1974 case, the Court did strike down a Washington state law that prohibited the display of the U.S. flag with "extraneous material" attached to it (Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842).

The Street decision left open the question of whether flag burning per se was a form of symbolic speech protected by the First Amendment. In 1989, in the highly publicized case of TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342, the Court surprised many observers by ruling that flag burning was protected. After publicly burning the U.S. flag outside the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson was charged with violating a Texas law prohibiting flag desecration. Johnson was convicted at trial, but his conviction was reversed by the Texas Court of Criminal Appeals, which held that the law violated the First Amendment. On a 5–4 vote, the U.S. Supreme Court agreed.

Writing for the majority, Justice WILLIAM J. BRENNAN JR. noted that "[t]he expressive, overtly political nature of [Johnson's] conduct was both intentional and overwhelmingly apparent." It was clear that "Johnson was convicted for engaging in expressive conduct." Rejecting the assertion by Texas that the law prevented breaches of the peace, the Court concluded that "Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."

Chief Justice WILLIAM H. REHNQUIST, in a dissenting opinion, dismissed the idea that flag burning was a form of symbolic speech. On the contrary, he stated, "flag burning is the equivalent of an inarticulate grunt or roar that … is most likely to be indulged in not to express any particular idea, but to antagonize others…." Rehnquist argued that the flag "as the symbol of our Nation, [has] a uniqueness that justifies a governmental prohibition against flag burning…."

The Johnson decision angered conservatives, who called for a constitutional amendment to place flag burning beyond the First Amendment's protection. When the amendment proposal failed to gain support, Congress passed the federal Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777, which made flag burning a federal crime. In United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the Flag Protection Act as applied to flag burning as a means of political protest.

Many commentators have criticized the way the Supreme Court has treated the symbolic speech area. In particular, observers have noted that the line between "speech" and nonverbal "conduct" is impossible to draw and that the real emphasis should be placed on the motive behind the government regulation. This approach would determine whether the regulation was intended to censor certain ideas or whether it was directed at the noncommunicative impact of the behavior.