Also known as: symbolic conducts · expressive conduct
Written by attorneys — see sources 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.
In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a political demonstration organized by the Revolutionary Communist Youth Brigade to protest the policies of the Reagan administration and Dallas-based corporations. The demonstration began with a march through the city streets where participants chanted slogans and carried signs critical of the administration and corporations. At several points the group staged die-ins to dramatize the consequences of nuclear war, and on some occasions spray-painted buildings and overturned plants, though Johnson took no part in those acts. The march concluded in front of Dallas City Hall. There Johnson was handed an American flag that had been removed from a flagpole at one of the corporate locations visited during the march. Johnson then poured kerosene on the flag and set it on fire. As the flag burned the demonstrators chanted America the red white and blue we spit on you. After the flag was consumed the group dispersed. No one was physically injured or threatened during the event although several witnesses were seriously offended by the flag burning. Of the approximately 100 demonstrators Johnson was the only one arrested. He was charged with desecration of a venerated object under Texas Penal Code Annotated section 42.09(a)(3). Following a trial Johnson was convicted and sentenced to one year in prison and a fine of two thousand dollars. The Court of Appeals for the Fifth District of Texas affirmed the conviction. The Texas Court of Criminal Appeals reversed the judgment. The Supreme Court of the United States granted certiorari.
View caseSkylar 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.
In 1982, the Community for Creative Non-Violence, a group dedicated to eliminating homelessness, and several of its adherents applied to the National Park Service for a permit to erect a symbolic tent city in Lafayette Park, across from the White House, and on the Mall as part of a wintertime demonstration intended to call attention to the plight of the homeless. The Park Service issued a renewable permit authorizing the erection of 20 tents in Lafayette Park that would accommodate 50 people and 40 tents on the Mall with a capacity of up to 100 people. The Park Service specifically denied the request that demonstrators be permitted to sleep in the tents. Lafayette Park is a roughly 7-acre square located across Pennsylvania Avenue from the White House. It is a garden park with formal landscaping of flowers and trees, with fountains, walks and benches. The Mall is a stretch of land running westward from the Capitol to the Lincoln Memorial some two miles away. It includes the Washington Monument, a series of reflecting pools, trees, lawns, and other greenery. Both areas were included in Major Pierre L'Enfant's original plan for the Capital. They are visited by vast numbers of visitors from around the country, as well as by large numbers of residents of the Washington metropolitan area. Under the regulations involved in this case, camping in National Parks is permitted only in campgrounds designated for that purpose. No such campgrounds have ever been designated in Lafayette Park or the Mall. Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep, or storing personal belongings, or making any fire, or using any tents or other structure for sleeping or doing any digging or earth breaking or carrying on cooking activities. CCNV and several individuals filed suit in the United States District Court for the District of Columbia against the Park Service, its Director, and the Secretary of the Interior, alleging that the regulations violated the First Amendment. The District Court granted summary judgment in favor of the Government. The Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed. The Supreme Court granted the Government's petition for certiorari.
View caseSerena 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.
The city of New York owns the Naumberg Acoustic Bandshell in the southeast portion of Central Park. This amphitheater and stage structure faces west across a grassy open area that can accommodate 6,000 to 8,000 people. The Sheep Meadow quiet zone and Central Park West residences lie within its sound range. Rock Against Racism is an unincorporated association dedicated to the espousal and promotion of antiracist views. It sponsored annual programs of speeches and rock music at the bandshell each year from 1979 through 1986. RAR furnished its own sound equipment and sound technician for the performing groups. Over the years the city received numerous complaints about excessive sound amplification at respondent's concerts from park users and residents of areas adjacent to the park. On some occasions RAR was less than cooperative when city officials asked that the volume be reduced. At one concert police cut off power to the sound system, causing the audience to become unruly and hostile. Before the 1984 concert city officials met with RAR representatives and agreed to monitor sound levels at the edge of the concert ground with revocation of the permit if limits were exceeded. Levels still exceeded acceptable limits for sustained periods despite warnings, resulting in two citations. The following year the city declined to grant a permit citing prior noise and crowd control problems but later issued one after RAR agreed to abide by regulations. The city then developed comprehensive Use Guidelines for the bandshell promulgated on March 21, 1986. These guidelines require sponsors to use only the Department of Parks and Recreation sound amplification system including amplifiers, speakers, monitors, microphones, and processors along with a professional sound technician employed by the city at no cost to the sponsor. The goals are to provide the best sound for all events and insure appropriate sound quality balanced with respect for nearby residential neighbors and the Sheep Meadow quiet zone. RAR returned to the United States District Court for the Southern District of New York and obtained a preliminary injunction against enforcement of the sound-amplification rule. This allowed it alone among 1986 users to employ its own equipment and technician, after which the concert again generated complaints. RAR then amended its complaint to seek damages and a declaratory judgment that the guideline was facially invalid. After five days of testimony the district court upheld the guideline while the Court of Appeals for the Second Circuit reversed.
View caseSasha 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.
In the summer of 2012, Charlie Craig and Dave Mullins, a same-sex couple planning to marry legally in Massachusetts and host a reception in Denver, visited Masterpiece Cakeshop in Lakewood, Colorado, owned and operated by Jack Phillips. Phillips, an expert baker and devout Christian who had owned the shop for twenty-four years, informed the couple that he would not create a wedding cake for their same-sex wedding because of his religious opposition to same-sex marriage. He offered to sell them other baked goods such as birthday cakes, shower cakes, cookies, and brownies. Craig and Mullins filed a discrimination complaint with the Colorado Civil Rights Division alleging that they had been denied full and equal service because of their sexual orientation in violation of the Colorado Anti-Discrimination Act. The Division investigated the complaint. It found probable cause that Phillips had violated the Act. The Division determined that on multiple occasions he had turned away potential customers on the basis of sexual orientation. Phillips had declined to sell custom wedding cakes to about six other same-sex couples. The matter was referred to the Colorado Civil Rights Commission. The Commission sent the case to a state Administrative Law Judge for a formal hearing. The ALJ granted summary judgment in favor of Craig and Mullins after rejecting Phillips' constitutional claims. The Commission affirmed the decision in full. It ordered Phillips to cease and desist from discriminating against same-sex couples. The Commission also required comprehensive staff training on the public accommodations provisions of the Act. Phillips had to submit quarterly compliance reports for two years documenting patrons denied service. Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal determinations and remedial order in 2016. The Colorado Supreme Court declined to hear the case. During public hearings before the Commission in May and July 2014, some commissioners stated that religious beliefs cannot legitimately be carried into the public sphere or commercial domain. They described Phillips' invocation of his sincerely held religious beliefs as one of the most despicable pieces of rhetoric that people can use. They compared it to defenses of slavery and the Holocaust. In three separate cases decided while Phillips' proceedings were pending, the Civil Rights Division concluded that other bakers had acted lawfully in declining to create cakes with decorations or messages that demeaned gay persons or gay marriages. Phillips petitioned the United States Supreme Court for a writ of certiorari, which the Court granted in 2017.
View caseSteven 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.
Respondents Glen Theatre, Inc. and Kitty Kat Lounge, Inc. operate establishments in South Bend, Indiana, that provide adult entertainment including live performances by nude or seminude dancers viewed through glass panels or on stage. Darlene Miller worked at the Kitty Kat Lounge on commission and sought to dance totally nude to increase her earnings. Gayle Ann Marie Sutro performed at Glen Theatre after a professional career in dancing and modeling. In 1985 the city enacted an ordinance banning public nudity, defined as the showing of genitals, pubic area, buttocks, or female nipples with less than full opaque covering, which required dancers to wear pasties and G-strings. Respondents filed suit in the United States District Court for the Northern District of Indiana alleging that the ordinance violated the First Amendment by prohibiting totally nude dancing. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. On remand after the Seventh Circuit's initial reversal, the District Court concluded that the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States. It rendered judgment in favor of the defendants. The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the question whether nude dancing is expressive conduct protected by the First Amendment.
View caseConduct 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…