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 Cir. 2010) struck down a city’s ban
on tattoo parlors. The court ruled that tattooing was a form of free speech
under the First Amendment.
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) said camping ban near
the White House was a reasonable time, place and manner restriction on
First Amendment-protected speech.
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) said the conviction of a California woman
for flying the red flag of the Soviet Union violated the First Amendment
free speech rights.
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.S. flag in protest.
Tinker v. Des Moines Independent Community School District (1969)
established that public school students have First Amendment rights. It is
the seminal decision on student speech.
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 Amendment rights to free speech. In United States v.
O’Brien, the court established the four-part O’Brien test to determine when
a law restricting expressive conduct was constitutional.
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) upheld a statute making it illegal to burn a cross
in public to intimidate others. Cross burning was a true threat unprotected
by the First Amendment.