symbolic speech

James Dale entered scouting in 1978 at the age of eight by joining Monmouth Council’s Cub Scout Pack 142. He became a Boy Scout in 1981. Dale achieved the rank of Eagle Scout in 1988 after earning 25 merit badges and being inducted into the Order of the Arrow. In 1989, Dale applied for and received approval for adult membership in the Boy Scouts. He served as an assistant scoutmaster for Troop 73 in Matawan, New Jersey. Around the same time, Dale’s position as co-president of the Lesbian/Gay Alliance at Rutgers University was publicized in a July 1990 newspaper interview. Later that month, the Boy Scouts sent Dale a letter revoking his adult membership. The letter stated that his membership was inconsistent with the values and standards of the Boy Scouts of America. It explained that the organization specifically forbids membership to homosexuals. Dale responded by filing a complaint in New Jersey Superior Court against the Boy Scouts and the Monmouth Council. He alleged that the revocation violated the New Jersey public accommodations statute prohibiting discrimination on the basis of sexual orientation. The Superior Court granted summary judgment in favor of the Boy Scouts. The New Jersey Supreme Court ultimately held that the Boy Scouts is a place of public accommodation subject to the law and that Dale’s expulsion violated the statute. The Boy Scouts petitioned for a writ of certiorari. The United States Supreme Court granted the petition to determine whether the application of New Jersey’s public accommodations law in this case violates the Boy Scouts’ First Amendment right of expressive association.

On April 6, 1967, William R. Baird delivered a lecture on birth control at Boston University. As part of the presentation, he showed a film, displayed contraceptive devices in their original packages, and at the conclusion invited members of the audience to take contraceptive articles from the stage. A young woman requested and received a package of Emko vaginal foam from Baird, after which he was arrested and charged with exhibiting and giving away a contraceptive device in violation of Massachusetts General Laws, c. 272, § 21. Baird was convicted following a bench trial in the Massachusetts Superior Court. The Supreme Judicial Court of Massachusetts set aside the conviction for exhibiting the contraceptives on First Amendment grounds but upheld the conviction for giving away the foam by a four-to-three vote. Baird then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts, which dismissed the petition. The Court of Appeals for the First Circuit vacated the dismissal and remanded with directions to grant the writ discharging Baird. The Supreme Court noted probable jurisdiction and heard the appeal brought by the Sheriff of Suffolk County, Massachusetts. The Massachusetts statute, as interpreted by the state courts, makes it a felony for anyone other than a registered physician or pharmacist to dispense contraceptives intended for the prevention of pregnancy, with distribution authorized only to married persons upon prescription.

In 1982, the Community for Creative Non-Violence, a group dedicated to eliminating homelessness, and several of its adherents applied to the National Park Service for a permit to erect a symbolic tent city in Lafayette Park, across from the White House, and on the Mall as part of a wintertime demonstration intended to call attention to the plight of the homeless. The Park Service issued a renewable permit authorizing the erection of 20 tents in Lafayette Park that would accommodate 50 people and 40 tents on the Mall with a capacity of up to 100 people. The Park Service specifically denied the request that demonstrators be permitted to sleep in the tents. Lafayette Park is a roughly 7-acre square located across Pennsylvania Avenue from the White House. It is a garden park with formal landscaping of flowers and trees, with fountains, walks and benches. The Mall is a stretch of land running westward from the Capitol to the Lincoln Memorial some two miles away. It includes the Washington Monument, a series of reflecting pools, trees, lawns, and other greenery. Both areas were included in Major Pierre L'Enfant's original plan for the Capital. They are visited by vast numbers of visitors from around the country, as well as by large numbers of residents of the Washington metropolitan area. Under the regulations involved in this case, camping in National Parks is permitted only in campgrounds designated for that purpose. No such campgrounds have ever been designated in Lafayette Park or the Mall. Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep, or storing personal belongings, or making any fire, or using any tents or other structure for sleeping or doing any digging or earth breaking or carrying on cooking activities. CCNV and several individuals filed suit in the United States District Court for the District of Columbia against the Park Service, its Director, and the Secretary of the Interior, alleging that the regulations violated the First Amendment. The District Court granted summary judgment in favor of the Government. The Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed. The Supreme Court granted the Government's petition for certiorari.

Respondents Glen Theatre, Inc. and Kitty Kat Lounge, Inc. operate establishments in South Bend, Indiana, that provide adult entertainment including live performances by nude or seminude dancers viewed through glass panels or on stage. Darlene Miller worked at the Kitty Kat Lounge on commission and sought to dance totally nude to increase her earnings. Gayle Ann Marie Sutro performed at Glen Theatre after a professional career in dancing and modeling. In 1985 the city enacted an ordinance banning public nudity, defined as the showing of genitals, pubic area, buttocks, or female nipples with less than full opaque covering, which required dancers to wear pasties and G-strings. Respondents filed suit in the United States District Court for the Northern District of Indiana alleging that the ordinance violated the First Amendment by prohibiting totally nude dancing. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. On remand after the Seventh Circuit's initial reversal, the District Court concluded that the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States. It rendered judgment in favor of the defendants. The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the question whether nude dancing is expressive conduct protected by the First Amendment.