First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct” or “symbolic speech,” which includes activities such as picketing and marching, distribution of leaflets and pamphlets, door-to-door solicitation, flag desecration, and draft-card burnings.1 Sit-ins and stand-ins may effectively express a protest about certain things.2

The Supreme Court has said that conduct will be sufficiently “communicative . . . to bring the First Amendment into play” if there is an “intent to convey a particularized message, and . . . the likelihood was great that the message would be understood by those who viewed it.” 3 Further, the conduct must itself be “inherently” expressive—merely “combining speech and conduct” is not sufficient to “transform conduct into ‘speech.’” 4 Expressive conduct is evaluated under a “less stringent” constitutional standard than pure speech and thus more subject to regulation and restriction.5 Some expressive conduct may be forbidden altogether, when “a sufficiently important governmental interest in regulating the nonspeech element” of the activity justifies “incidental limitations” on the protected expression.6 The relevant test is an intermediate scrutiny standard that was announced in United States v. O’Brien: “a government regulation is sufficiently justified 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 alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 7 This intermediate standard is related to the idea that even regulations of pure speech may sometimes be justified if they regulate only the time, place, or manner of the speech—that is, focusing on non-content elements of the speech.8 If speech is oral, it may be noisy enough to be disturbing,9 and, if it is written, it may be litter;10 in either case, the noise or litter aspects of the speech may be regulable.11

United States v. O’Brien12 affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card. Finding that the government’s interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a “passive enforcement” policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.13

Footnotes

1

See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion). The concept of expressive conduct has also come up in the context of government speech. E.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 216 (2015). For a discussion of these cases, see Amdt1.7.8.2 Government Speech and Government as Speaker.

2

In Brown v. Louisiana, 383 U.S. 131 (1966), the Court held protected a peaceful, silent stand-in in a segregated public library. Speaking of speech and assembly, Justice Abe Fortas said for the Court: “As this Court has repeatedly stated, these rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities.” Id. at 141–42. See also Garner v. Louisiana, 368 U.S. 157, 185, 201 (1961) (Harlan, J., concurring). On a different footing is expressive conduct in a place where such conduct is prohibited for reasons other than suppressing speech. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service restriction on overnight sleeping as applied to demonstrators wishing to call attention to the plight of the homeless).

3

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410–11 (1974)) (internal quotation mark omitted).

4

Rumsfeld v. Forum for Acad. & Inst. Rts., 547 U.S. 47, 67 (2006) (holding that conduct was not “inherently expressive” where it was “expressive only because the [litigants] accompanied their conduct with speech explaining it” ). Cf. United States v. O’Brien, 391 U.S. 367, 376 (1968) (saying conduct may be protected when “'speech’ and ‘nonspeech’ elements are combined in the same course of conduct” ).

5

Johnson, 491 U.S. at 403.

6

O’Brien, 391 U.S. at 376.

7

Id. at 377.

8

Turner Broad. Sys. v. FCC, 512 U.S. 622, 662 (1994) (equating the O’Brien standard with the intermediate scrutiny standard applicable to content-neutral restrictions); see also Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech; Amdt1.7.7.1 The Public Forum.

9

E.g., Saia v. New York, 334 U.S. 558 (1948); Kovacs v. Cooper, 336 U.S. 77 (1949).

10

E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939).

11

Cf. Cohen v. California, 403 U.S. 15 (1971).

12

391 U.S. 367 (1968)

13

Wayte v. United States, 470 U.S. 598 (1985). The incidental restriction on First Amendment rights to speak out against the draft was no greater than necessary to further the government’s interests in “prosecutorial efficiency,” obtaining sufficient proof prior to prosecution, and promoting general deterrence (or not appearing to condone open defiance of the law). See also United States v. Albertini, 472 U.S. 675 (1985) (order banning a civilian from entering military base upheld as applied to attendance at base open house by an individual previously convicted of destroying military property).