Case Categories: Expressive Conduct / Symbolic Speech

Expressive conduct is behavior designed to convey a message; its function as speech means that it has increasingly been protected by the First Amendment.

Two rough synonyms are symbolic speech, statements made through the use of symbols rather than words, and speech plus, behavior used by itself or in connection with language to communicate a message.

Expressive conduct allows individuals to express their opinions and contributes to societal debate, but it sometimes produces results that Congress seeks to prevent.

When faced with laws that infringe on expressive conduct, the Supreme Court generally asks whether the regulation is aimed at the expressive or the nonexpressive aspects of the conduct. When the regulation aims at the expressive aspects, the Court assesses it using strict scrutiny. When the regulation aims at the nonexpressive aspects, the Court assesses it using intermediate scrutiny.

Following is a list of Supreme Court and significant U.S. Circuit Court of Appeals decisions related to expressive conduct and symbolic speech.

• Anderson v. City of Hermosa Beach (9th Circuit) (2010)

  Anderson v. City of Hermosa Beach (9th Cir. 2010) struck down a city’s ban on tattoo parlors. The court ruled that tattooing was a form of free speech under...

• Buehrle v. City of Key West (11th Cir.) (2015)

  Buehrle v. City of Key West (11th Cir. 2015) said a city couldn't ban new tattoo parlors in its historic district without running afoul of the First Amendment...

• Clark v. Community for Creative Non-Violence (1984)

  Clark v. Community for Creative Non-Violence (1984) said camping ban near the White House was a reasonable time, place and manner restriction on First Amendment...

• Spence v. Washington (1974)

  In Spence v. Washington (1974), the Supreme Court held that the First Amendment protects the right to desecrate the American flag as a form of symbolic protest...

• Stromberg v. California (1931)

  Stromberg v. California (1931) said the conviction of a California woman for flying the red flag of the Soviet Union violated the First Amendment free speech...

• Texas v. Johnson (1989)

  Texas v. Johnson (1989) struck down on First Amendment grounds a flag desecration law. The has decision served as the crux of the debate about burning of the U....

• Tinker v. Des Moines Independent Community School District (1969)

  Tinker v. Des Moines Independent Community School District (1969) established that public school students have First Amendment rights. It is the seminal...

• United States v. O'Brien (1968)

  The Supreme Court in 1968 upheld a law that prohibited the mutilation of draft cards against a challenge by an anti-war protester who said it violated his First...

• Village of Skokie v. National Socialist Party of America (Ill) (1978)

  The decision in Village of Skokie v. National Socialist Party of America, 373 N. E. 2d 21 (Ill. 1978) would set the foundation for later hate speech cases...

• Virginia v. Black (2003)

  Virginia v. Black (2003) upheld a statute making it illegal to burn a cross in public to intimidate others. Cross burning was a true threat unprotected by the...