US Supreme Court:

Nonverbal Expression

Although the framers offered no clear guidance on the intended meaning of the key terms “speech” and “press” in the First Amendment, it seems likely that more than simply printed and spoken words were to be protected. For the generation that had exulted in the Boston Tea Party, some forms of conduct must have been deemed expressive. Art, drama, and music also served to convey ideas and feelings, as much to the generation of the framers as in present times. Confining the reach of the First Amendment to the written and spoken word would thus appear to be at variance with the hopes of those who framed the Bill of Rights.

Indeed, court decisions involving nonverbal expression have been major contributors to the steadily expanding scope of protection for free speech. One of the earliest such cases involved a California law that forbade anyone to display publicly a red flag. The Supreme Court struck down that law in Stromberg v. California (1931), and thus conferred at least some protection for nonverbal communication, though without defining either the scope of or rationale for such protection. This was one of the Supreme Court's earliest free‐speech protection rulings; it followed by only six years the justices' declaration that state and local governments were fully bound to respect free expression even though the text of the First Amendment spoke only to Congress and the federal government.

The red flag ruling was soon followed by other decisions protecting expression without words, increasingly known as “symbolic speech.” The right to picket (with or without words) was specifically upheld in Thornhill v. Alabama (1941). The civil rights movement brought to the Supreme Court a host of situations in which actions often conveyed the views of protestors and demonstrators more graphically than did their words. The right to march and demonstrate in support of equal opportunity received substantial protection in cases like Edwards v. South Carolina (1963). Two years later, in *Brown v. Louisiana (1966), the justices embraced the right to protest against racial discrimination by staging a peaceful demonstration in the reading room of a public library (see Race and Racism).

These early cases contained an important caution: While recognizing clearly the expressive value of marches and demonstrations, the Supreme Court also warned against equating such expressive conduct with “pure speech” in the form of written or spoken words. The stage was now set for one of several constitutional tests spawned by the unpopular war in *Vietnam. Burning draft cards in public had become a visible way of showing one's opposition to the war. A new federal law made it a crime for a registrant to destroy his draft card, although there was already on the books a regulation that required all such persons to carry their registration cards with them at all times. The new law was thus challenged both on the ground that it was designed to punish expressive conduct that conveyed an antiwar message, and that the government's interests were fully protected by the preexisting laws.

The Supreme Court was not persuaded by either branch of that argument, and in *United States v. O'Brien (1968) upheld the draft‐card destruction law. The case went well beyond the immediate issues, and became the vehicle for a new judicial approach to nonverbal communication: “When ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify limitations on First Amendment freedoms” (391 U.S. at 376). It would have been a different matter if Congress had unmistakably targeted only the expressive or communicative element in draft‐card burning, but the justices ruled that this had not been the case. In contrast, there were several valid government interests that were separately served by making draft card destruction a crime.

The impact of the O'Brien case was soon tempered, however, by other Vietnam era cases. In *Tinker v. Des Moines School District (1969), the High Court held that a student had been wrongfully suspended from public school for wearing a black armband as a protest against the Vietnam War. The Court found that the armband display, although involving no words and therefore the classic nonverbal message, was an “expression of opinion” that was “closely akin to pure speech” and thus entitled to First Amendment protection unless it had actually disrupted the school or interfered with the rights of other students. The Tinker case marked the clearest recognition to date of the First Amendment status of symbolic speech, as well as setting a strong and clear precedent for the free speech rights of high school students.

Soon the courts were deluged with cases involving other forms of symbolic speech and nonverbal protest. Many of those cases were appeals of convictions of persons who had burned or otherwise defiled the American flag, and were charged under a variety of different laws. Each time the Court managed to find some basis on which to reverse the convictions, without ever reaching the ultimate question whether burning a flag was or was not protected expression.

It was not until long after the Vietnam era had ended that the Supreme Court even came close to the core issue. In Texas v. Johnson (1989) a majority of the justices agreed with the Texas Court of Criminal Appeals that the state had gone too far in targeting this especially unpopular form of expressive conduct. The activity that brought about the conviction was clearly expressive, much as the Court had found “an expressive element in conduct relating to flags” in earlier cases. What most troubled the justices was the sense that Texas had “foster[ed] its own view of the flag by prohibiting expressive conduct relating to it” (491 U.S. at 417) since a flag‐desecrator would have been punished only for symbolically taking one side in the debate over national policy.

Soon after the Johnson decision, Congress enacted a federal law, which its supporters believed differed enough from the Texas laws that a conviction under it might survive. That hope was soon dashed, however, and in *United States v. Eichman (1990) the justices once more sustained this form of symbolic speech. In almost every session of Congress, a proposed constitutional amendment that would forbid flag desecration has gotten the support of the required two‐thirds in the House of Representatives, but narrowly failed in the Senate. Among the most persuasive counterarguments from senators who may abhor flag burning, but refuse to tamper with the basic safeguards of the First Amendment, is the accurate claim that the Supreme Court never said flatly that flag desecration is a fully protected form of expression, beyond reach of the criminal law. What the Court has said, time and again, is that the means used in each of the cases either targeted a particular viewpoint, or failed in some other respect to meet the high standards the justices have set for symbolic expression.

In the earlier cases, it was far from clear whether nonverbal expression could also be nonpolitical. In Southeastern Promotions, Ltd. v. Conrad (1974), the Supreme Court strongly implied that artistic activity—in this case the public performance of the controversial rock musical Hair—was as much entitled to protection as core political expression. Later the Court would encompass other nonpolitical expressive activity within the First Amendment, although with what seems to have been diminishing enthusiasm. In *Barnes v. Glen Theatre, Inc. (1991), the Court upheld a city's ban on nude dancing, finding that under the O'Brien test the law targeted a municipal interest unrelated to the suppression of free expression.

Along the way, the Court rather grudgingly conceded that such activity was “expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” Thus a city's concern for public safety or morality might override a performer's desire to appear on a stage without clothing. That rather disparaging view was reinforced a decade later in City of Erie v. Pap's A.M. (2000), in which several justices argued that nude dancing was simply not speech at all, but pure conduct, and thus subject to government regulation without having to meet even the strictures of the O'Brien test.

The Court's most recent review of symbolic expression was in the context of cross‐burning, an activity that the Virginia Supreme Court has closely analogized to flag desecration. But a majority of the justices, in Virginia v. Black (2003), saw the issue rather differently. Though recognizing some similarity between the two types of burning, and acknowledging that cross‐burners were seeking to convey a message, the High Court ruled that states may penalize such activity despite its communicative quality. After cautioning that “the protections afforded by the First Amendment … are not absolute,” the justices recalled that some forms of expression (for example, “fighting words” and “true threats”) had been found not to deserve such protection. For reasons similar to those which excluded such evocative means of communication, cross‐burning “is often intimidating, intended to create a pervasive fear in victims that they are a target of violence” (538 U.S. at 360).

There is a final area of special interest under the heading of nonverbal expression. During World War II, the Supreme Court reversed itself on the question of whether states or public schools could compel students to recite the Pledge of Allegiance. In West Virginia State Board of Education v. Barnette (1943), the High Court ruled that government could not force a citizen to make an abhorrent declaration such as reciting the pledge—not simply because of free speech or religious freedom, but more broadly because government simply lacks such power as a matter of due process. The justices reaffirmed that view nearly a quarter century later, holding in Woolley v. Maynard (1977) that a state could not compel motorists to display on their licenses plate an uncongenial motto—specifically, New Hampshire's “Live Free or Die.” Though neither case explicitly invoked the concept of nonverbal expression, insofar as both rulings recognized and sustained a person's right to remain silent as a matter of conscience, they did buttress the basic premise that the First Amendment protects communication that may not involve written or spoken words.

Despite some recent setbacks—most notably in the nude dancing and cross‐burning cases—the protections of free speech extend well beyond traditional verbal messages. The basic principles were fashioned a third of a century ago, in the Tinker and O'Brien cases. The pairing of these precedents is vital to understanding the evolution of nonverbal expression.

Nonverbal Expression

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