Symbolic speech

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Symbolic speech, sometimes referred to as symbolic conduct or expressive conduct, is a legal term for an action that expresses an opinion or idea non-verbally. Examples of symbolic speech are marching in a parade, burning a flag, or cross burning. Because it involves action and not simply written or spoken words, this form of expression is subject to more government regulation.[1] In considering whether an act can be considered symbolic speech and whether it qualifies for protection under the First Amendment, US courts have typically considered certain questions, which include:

Where did the action occur? Was it in a public area?
Did the action cause Imminent lawless action?
Did the action communicate a constitutionally protected message?

One common mistake when dealing with Symbolic Speech however is that all symbolic speech is protected. The test for whether symbolic speech is protected is found in UNITED STATES v. O'BRIEN 391 U.S. 367 1968. While O'Brien was convicted for burning his draft card that conviction was upheld on non-constitutional grounds, specifically that the draft card while addressed to him, remained the property of the U.S. Government. And his burning of it was a destruction of government property. The test as laid out in O'Brien however has been used to protect demonstrators (so long as they burn their own flag).

[edit] Court Rulings

In Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that students' right to wear black armbands to school in protest of the Vietnam War was protected as "symbolic speech".

"Fighting words" are not protected as symbolic speech (Chaplinsky v. New Hampshire) because they represent a breach of the public peace.

In United States v. O'Brien, a test was established to determine whether a government regulation that may restrict symbolic speech is justified. Such a regulation can be considered justified if it has a clear and valid purpose which outweighs a small but necessary curbing of symbolic speech.

In the 1989 case Texas v. Johnson, the US Supreme Court ruled that flag burning is protected as symbolic speech.