Also known as: symbolic speech
Written by attorneys · grounded in primary & secondary sources — see below
Conduct that conveys a particularized message likely to be understood by those who view it. Such conduct receives First Amendment protection equivalent to pure speech when the government seeks to regulate it because of the message it communicates.
Elena Estrada burned a U.S. flag on the steps of city hall during a political rally criticizing government policy. City police arrested her under a statute banning flag desecration. The arrest targeted the communicative impact of her act rather than any risk of breach of the peace. A court therefore held the statute unconstitutional as applied to her conduct.
Ezra Eastman and two companions selected a victim because of his race and beat him while shouting racial slurs. Prosecutors charged Eastman under a statute that enhanced penalties for crimes motivated by bias. The statute punished the underlying assault rather than any expressive element of the defendants' selection of a victim. A court therefore upheld the enhanced sentence.
Select any source to read its text and confirm it supports the definition.
Eugene Ellsworth burned a cross on the lawn of an African American family's home while yelling racial epithets. The city charged him under an ordinance prohibiting cross burning that arouses anger on the basis of race. The ordinance singled out particular viewpoints for punishment. A court therefore struck down the ordinance as applied to Ellsworth's conduct.
Elena Estrada performed a nude dance at an adult entertainment establishment. City police arrested her under a public nudity ordinance aimed at combating secondary effects of adult businesses. The ordinance furthered a substantial interest unrelated to suppression of the erotic message. A court therefore upheld the ordinance as applied to her conduct.
Evelyn Ellison and fellow activists erected tents in a public park to dramatize homelessness. Park regulations prohibited overnight sleeping. Officials enforced the rule against the group even though they permitted daytime symbolic displays. The regulation advanced interests in park maintenance unrelated to suppressing any message. A court therefore upheld the enforcement.
Emmett Egan and several classmates wore black armbands to school to protest the Vietnam War. School officials suspended them under a policy banning the armbands. The policy targeted the students' symbolic message rather than any disruption of classes. A court therefore held the suspensions violated the First Amendment.
A court asks whether the actor intended to convey a particularized message and whether that message would likely be understood by viewers. Conduct meeting both elements receives First Amendment protection. Purely noncommunicative acts such as ordinary assault do not qualify.
Supporting sources
The regulation is valid if it is within the government's power, furthers an important or substantial interest, the interest is unrelated to suppressing expression, and the incidental burden on speech is no greater than essential. This intermediate test permits reasonable time, place, and manner restrictions that leave open alternative channels of communication.
Supporting sources
A regulation fails when it targets the communicative impact of the conduct rather than a non-speech interest. Timing and narrow scope that track announced protests can show a speech-suppressive purpose. A statute aimed at flag burning as political expression therefore violates the First Amendment absent an imminent breach of the peace.
Supporting sources
No. Conduct that produces special harms distinct from its communicative impact, such as violence, receives no protection. The government may punish the nonexpressive harms even when the actor also intends to send a message.
Supporting sources
…granted certiorari. 501 U.S. 1203 (1991). The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed. Texas v. Johnson , 491 U.S. 397, 406 (1989); United States v. Eichman , 496 U.S. 310, 318–319 (1990). Content-based regulations are…