Also known as: symbolic speeches · expressive conduct
Written by attorneys · grounded in primary & secondary sources — see below
Nonverbal conduct that conveys a particularized message likely to be understood by viewers. Such conduct receives First Amendment protection when government regulation targets its communicative element rather than a separate nonspeech interest.
Sebastian Santos burned an American flag on a public sidewalk during a protest against federal policies. City police arrested him under a local ordinance that banned flag desecration. The arrest targeted the political message conveyed by the burning rather than any risk of violence or property damage.
Sylvia Santos and her classmates wore black armbands to school to protest a war. School administrators suspended the students under a policy that prohibited all armbands. The policy singled out the students' antiwar message without evidence of substantial disruption to classes.
Select any source to read its text and confirm it supports the definition.
Sabrina Shah joined the Boy Scouts as an adult leader to advocate for inclusive policies. The organization revoked her membership upon learning of her advocacy efforts. The revocation rested on the message her continued participation would send rather than any conduct unrelated to expression.
Steven Silva handed out pamphlets describing birth control methods at a public lecture. State officials prosecuted him under a statute that restricted distribution of such materials. The prosecution focused on the ideas conveyed by the pamphlets rather than any separate health or safety concern.
Sierra Santos and fellow activists erected tents on the National Mall to highlight the lack of shelter for homeless persons. Park officials enforced a camping ban that applied only to overnight stays in that location. The enforcement singled out the protesters' intended message about government housing policy.
Stephen Shaw performed a dance without clothing at a licensed nightclub. City regulators applied a public nudity ordinance that required dancers to wear pasties and a G-string. The ordinance advanced interests in reducing secondary effects of adult businesses without suppressing the erotic message itself.
Pure speech consists of words or printed communications that receive the strongest protection. Symbolic speech involves nonverbal conduct that conveys a message and receives protection only when the government targets the communicative aspect rather than an independent nonspeech interest.
A regulation survives if it lies within the government's constitutional power, furthers an important or substantial interest unrelated to suppressing expression, and restricts speech no more than essential to that interest.
Flag burning receives protection when performed as political expression. A statute aimed at the communicative impact of the act is unconstitutional absent an imminent breach of the peace or another compelling nonspeech interest.
Schools may prohibit symbolic expression only upon a showing that the conduct would materially and substantially disrupt school operations or invade the rights of others. A policy whose sole purpose is to suppress the message is invalid.
Nude dancing lies within the outer perimeters of the First Amendment though only marginally so. A generally applicable public nudity law that furthers interests in combating secondary effects unrelated to the erotic message may be enforced.
…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…