Symbolic speech has developed as a separate category of speech under the First Amendment. The category can take many different forms, some of which are akin to ‘‘pure speech,’’ such as when protestors tape a peace sign to a United States flag. Symbolic speech can also include forms of speech that verge into ‘‘conduct.’’ For example, when an individual burns a United States flag (or, for that matter, a draft card) in protest of governmental policies, the burning can constitute speech (in that it makes a statement regarding United States policies), but it can also involve ‘‘conduct’’ in the sense that the protestor is engaged in the ‘‘conduct’’ of burning the flag. Or, to take a more extreme example, if a protestor decides to blow up the White House to show his contempt for the president’s policies, the act of blowing up the White House involves conduct but can be done for speech purposes.
In applying the First Amendment’s speech protections to symbolic speech, the U.S. Supreme Court has been less inclined to sustain governmentally imposed restrictions on pure speech are more difficult to sustain and has generally been inclined to apply a stricter level of review to such speech. The United States Supreme Court’s approach to symbolic speech is revealed by its landmark decision in Tinker v. Des Moines Independent School District, 393 U.S. 503, 508 (1969). In that case, high school students wore black armbands to school to protest United States involvement in the Vietnam War. The Court viewed the armbands as symbolic speech and treated it as pure speech rather than conduct. As a result, the Court held that the students could not be disciplined for wearing the armbands absent proof that the wearing had caused substantial disruption to school activities. The Court found inadequate evidence of disruption.
By contrast, when symbolic speech tends toward conduct rather than pure speech, the Court has been somewhat more inclined to allow governmental restrictions. The prevailing test for evaluating restrictions on symbolic speech was announced in United States v. O’Brien, 391 U.S. 367 (1968). O’Brien applied a four-part test to evaluate the legality of restrictions on expressive conduct. Under that test, a governmental regulation is sufficiently justified, despite its incidental impact upon First Amendment interests, ‘‘if it is within the constitutional power of the Government; if it furthers an important or substantial governmental 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.’’
A number of governmental restrictions have failed under the third prong of the O’Brien test—the requirement that the governmental interest in restricting speech must be ‘‘unrelated to the suppression of free expression.’’ In Texas v. Johnson, 491 U. S. 397 (1989), Johnson burned a United States flag outside the Republican National Convention to protest the policies of the Reagan administration and the policies of certain Dallas-based corporations. Johnson was convicted of desecrating a venerated object and fined $2,000. The prosecution was based on a statute which read as follows: ‘‘A person commits an offense if he intentionally or knowingly desecrates [a] state or national flag; ‘desecrate’ means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.’’ The Court ultimately overturned Johnson’s conviction finding that the restriction was related to speech. By prohibiting ‘‘desecration’’ of the flag, the state was trying to particular viewpoints and conduct relating to the flag.
Even though the Court is more inclined to invalidate speech restrictions that are related to the suppression of free expression, the Court has not been overly inclined to inquire into governmental motives. For example, in the O’Brien case itself, Congress passed a law prohibiting the mutilation or destruction of Selective Service registration cards (aka, draft cards). The Court readily accepted Congress’ assertion that the motive underlying the prohibition was unrelated to expression and was instead motivated by a need to protect registration cards as part of the draft process. Although there was some evidence suggesting that Congress had passed the prohibition in an effort to prohibit protests (draft card burning protests), the Court refused to inquire into congressional motive.
Assuming that a speech restriction is unrelated to the suppression of free expression, the O’Brien test requires consideration of whether there is a ‘‘substantial’’ or ‘‘important’’ governmental interest underlying the restriction and whether the restriction is essential to that interest. In many cases, because the O’Brien test imposes less rigorous review than strict scrutiny (which requires that the governmental interest be ‘‘compelling’’ or ‘‘overriding’’ and that the governmental prohibition be the ‘‘least restrictive’’ means available to vindicate that interest), the test can often be met. In the case of the hypothetical protestor who wants to blow up the White House to show his contempt for the president’s policies, there is an ‘‘important’’ or ‘‘substantial’’ governmental interest in preventing the bombing, and the prohibition is essential to the vindication of that interest.
In Texas v. Johnson, the flag burning case, depending on how the governmental interest is characterized, it might be possible to satisfy the O’Brien standard. For example, if the governmental interest had been simply to prevent ‘‘arson,’’ and had it been articulated as part of a content-neutral ban on open fires in the city, the conviction might have been sustained. The government has an ‘‘important’’ or ‘‘substantial’’ interest in preventing open fires within the city limits of a city, that is unrelated to the suppression of free expression, and the ban on open fires is justified as part of that interest. In the actual case, the government’s case foundered, because the government was trying to protect the flag as a symbol and was actively trying to prevent it from being burned as part of speech protests.
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), further illustrates how the O’Brien test applies. In that case, the Community for Creative Non-Violence wanted to erect a tent city in a park in front of the White House. Although the United States Park Service was willing to permit the erection of the city, it was unwilling to allow the protestors to spend the night in the park. The Park Service claimed that overnight campers caused greater stress and degradation to the park. The Court upheld the Park Service’s position, noting that it was unrelated to the suppression of speech, that the position was undergirded by an important or substantial governmental interest (the protection of parks), and that the ban on overnight camping served that interest.
RUSSELL L. WEAVER
References and Further Reading