Also known as: symbolic conducts · expressive conduct
Written by attorneys · grounded in primary & secondary sources — see below
An expressive act undertaken with intent to convey a particularized message that is likely to be understood by viewers as communicating that message. The act receives First Amendment protection as speech when the government seeks to regulate it because of its communicative impact. Regulation is permitted only when the measure is within governmental power, furthers an important interest unrelated to suppression of expression, and imposes an incidental burden no greater than essential to that interest.
Sophia Singh burns a U.S. flag on a public sidewalk during a political rally criticizing government policy. Police arrest her under a statute that bans flag desecration except for proper disposal. The arrest is challenged because the statute targets the communicative impact of the act rather than any risk of breach of the peace.
Sydney Santos burns a flag outside a government building to protest national policies. Officers cite a state law against flag mutilation. The citation is contested on the ground that the law suppresses the political message conveyed by the burning rather than addressing a non-speech harm.
Select any source to read its text and confirm it supports the definition.
Skylar Sullivan and supporters sleep overnight in a public park to dramatize the plight of the homeless. Park officials enforce a no-camping rule against them. The enforcement is challenged because the sleeping is chosen specifically to communicate the protest message.
Serena Soto organizes a music event in a city park to protest racism and uses amplified sound. Officials impose volume limits under a noise ordinance. The limits are challenged because they restrict the expressive element of the performance without advancing an unrelated interest.
Sasha Stone operates a bakery and declines to create a cake with a message endorsing same-sex marriage. State officials cite an antidiscrimination law. The citation is challenged because the cake design is treated as the baker's own expressive conduct.
Steven Silva owns a theater that features nude dancing as artistic performance. City officials enforce a public nudity ordinance against the venue. The enforcement is challenged because the dancing conveys an erotic message that receives marginal First Amendment protection.
Conduct qualifies when the actor intends to convey a particularized message and there is a great likelihood that viewers will understand the message. Courts then treat the conduct as speech and apply the intermediate scrutiny test for regulations that incidentally burden expression.
A regulation is valid if it is within the government's constitutional power, furthers an important or substantial governmental interest, the interest is unrelated to the suppression of expression, and the incidental restriction on speech is no greater than essential to further that interest.
No. Strict scrutiny applies only when the government's interest is related to the suppression of the message. When the interest is unrelated to expression, courts apply the four-part intermediate scrutiny test instead.
No. A statute aimed at suppressing the message conveyed by burning a flag is unconstitutional absent an imminent breach of the peace or another compelling non-speech interest.
…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…