Definition and Examples
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by Elianna Spitzer
Elianna Spitzer is a legal studies writer and a former Schuster Institute for Investigative Journalism research assistant.
Symbolic speech is a type of nonverbal communication that takes the form of an action in order to communicate a specific belief. Symbolic speech is protected under the First Amendment of the U.S. Constitution, but there are some caveats. Under the First Amendment, “Congress shall make no law… prohibiting free speech."
The Supreme Court has maintained that symbolic speech is included within “free speech,” but it may be regulated, unlike traditional forms of speech. Requirements for regulations were laid out in the Supreme Court decision, United States v. O’Brien.
Key Takeaways: Symbolic Speech
Symbolic speech is the communication of a belief without the use of words.
Symbolic speech is protected under the First Amendment, but may be regulated by the government in some situations.
Symbolic Speech Examples
Symbolic speech has a wide variety of forms and uses. If an action makes a political statement without the use of words, it falls under symbolic speech. Some of the most common examples of symbolic speech are:
Wearing armbands/clothing
Silently protesting
Flag burning
O'Brien Test
In 1968, United States v. O’Brien redefined symbolic speech. On March 31, 1966, a crowd gathered outside the South Boston Courthouse. David O’Brien climbed the steps, pulled out his draft card, and set it on fire. FBI agents who observed the event from the back of the crowd took O’Brien into the courthouse and arrested him. O’Brien argued that he knew he had broken federal law, but that the act of burning the card was a way for him to oppose the draft and share his anti-war beliefs with the crowd.
The case eventually made its way to the Supreme Court, where the justices had to decide if the federal law, which prohibited burning the card, infringed on O'Brien's First Amendment right to freedom of speech. In a 7-1 decision delivered by Chief Justice Earl Warren, the court found that symbolic speech, such as burning a draft card, may be regulated if the regulation followed a four-prong test:
It is within the constitutional power of the Government;
It furthers an important or substantial governmental interest;
The governmental interest is unrelated to the suppression of free expression;
The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Symbolic Speech Cases
The following examples of symbolic speech cases further refined U.S. federal policy on speech.
Stromberg v. California (1931)
In 1931, the California Penal Code banned public displays of red flags, badges, or banners in opposition to the government. The penal code was broken into three parts.
Displaying a red flag was prohibited:
As a sign, symbol, or emblem of opposition to organized government;
As an invitation or stimulus to anarchistic action;
As an aid to propaganda that is of a seditious character.
Yetta Stromberg was convicted under this code for displaying a red flag at a camp in San Bernardino which had received funding from Communist Organizations. Stromberg's case was eventually heard at the Supreme Court.
The Court ruled that the first part of the code was unconstitutional because it violated Stromberg’s first amendment right to free speech. The second and third parts of the code were upheld because the state had a countervailing interest in prohibiting acts that incited violence. Stromberg v. California was the first case to include "symbolic speech" or "expressive conduct" under First Amendment protections for freedom of speech.
Tinker v. Des Moines Independent Community School District (1969)
In Tinker v. Des Moines, the Supreme Court addressed whether wearing armbands in protest was protected under the First Amendment. Several students had chosen to protest the Vietnam War by wearing black armbands to school.
The court held that the school could not restrict the students' speech simply because the students were on the school's property. Speech could only be restricted if it "materially and substantially" interfered with school activities. Armbands were a form of symbolic speech that did not meaningfully interfere with school activities. The court ruled that the school violated the students' freedom of speech when they confiscated the bands and sent the students home.
On April 26, 1968, Paul Robert Cohen walked into the Los Angeles Courthouse. As he moved down a corridor, his jacket, which prominently read “f*ck the draft” caught the attention of officers. Cohen was promptly arrested on the basis that he’d violated California Penal Code 415, which prohibited, “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.” Cohen maintained that the goal of the jacket was to depict his feelings about the Vietnam War.
The Supreme Court ruled that California could not criminalize speech on the basis that it was “offensive." The state has an interest in ensuring that speech does not compel violence. However, Cohen’s jacket was a symbolic representation that did little to inspire physical violence as he walked through the corridor.
Cohen v. California upheld the idea that a state must prove that symbolic speech is intended to incite violence in order to prohibit it. The case drew upon Tinker v. Des Moines to show that fear itself cannot provide a reason to violate someone’s First and Fourteenth Amendment rights.
Texas v. Johnson (1989), U.S. v. Haggerty (1990), U.S. v. Eichman (1990)
Only a year apart, all three of these cases asked the Supreme Court to determine whether the government could prohibit their citizens from burning the American flag. In all three cases, the court held that burning the American flag during the course of a protest was symbolic speech and was therefore protected under the First Amendment. Similar to their holding in Cohen, the Court found that the "offensiveness" of the act did not offer the state a legitimate reason to prohibit it.
U.S. v. Eichman, argued in conjunction with U.S. v. Haggerty, was a response to Congress' passage of the Flag Protection Act in 1989. In Eichman, the Court focused on the specific language of the act. It allowed for the "disposal" of flags through a ceremony but not the burning of flags through political protest. This meant that the state sought to only prohibit the content of certain forms of expression.
United States v. O'Brien, 391 U.S. 367 (1968).
Cohen v. California, 403 U.S. 15 (1971).
United States v. Eichman, 496 U.S. 310 (1990).
Texas v. Johnson, 491 U.S. 397 (1989).
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
Stromberg v. California, 283 U.S. 359 (1931).