A

SYMBOLIC SPEECH

Does communication by conduct rather than by words constitute "speech" within the FIRST AMENDMENT'S guarantee of FREEDOM OF SPEECH ? The status of communicative conduct, as with most free speech questions, is usually presented in an emotion-laden context: does the burning of a flag, or of a draft card, constitute a First-Amendment-protected activity? Is the act of marching in a public DEMONSTRATION (as distinguished from the placards which the marchers carry) a form of protected "speech?" Are school or other governmental regulations of hair styles an abridgment of freedom of speech? Does nude dancing constitute a form of First Amendment "speech?" Although the lower federal and state courts frequently have wrestled with all of these questions, the United States Supreme Court has yet to articulate a theoretical base that explains the status of symbolic speech under the First Amendment.

At least since STROMBERG V. CALIFORNIA (1931), the Supreme Court has assumed that "speech" within the meaning of the First Amendment's guarantee of "freedom of speech" includes more than merely verbal communications. In Stromberg the Court declared invalid a California statute that prohibited the public display of "any flag, badge, banner or device … as a sign, symbol or emblem of opposition to organized government." Among other decisions applying the First Amendment to nonverbal conduct, perhaps the most striking was TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969). The Court there upheld the right of high school students to wear black armbands as a protest against American participation in the VIETNAM WAR, calling their conduct "the type of symbolic act that is within the Free Speech Clause of the First Amendment."

But if conduct sometimes constitutes protected "speech," sometimes it does not. UNITED STATES V. O ' BRIEN (1968) affirmed a conviction for draft card burning. Chief Justice EARL WARREN, speaking for the Court, answered the defendant's symbolic speech defense by opining, "We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech' whenever the person engaging in the conduct intends thereby to express an idea."

Any attempt to disentangle "speech" from conduct that is itself communicative will not withstand analysis. The speech element in symbolic speech is entitled to no lesser (and also no greater) degree of protection than that accorded to so-called pure speech. Indeed, in one sense all speech is symbolic. At this moment the reader is observing black markings on paper which curl and point in various directions. We call such markings letters, and in groups they are referred to as words. What is being said in this sentence is meaningful only because the reader recognizes these markings as symbols for particular ideas. The same is true of oral speech which is simply the use of symbolic sounds. Outside the science fiction realm of mind-to-mind telepathic communication, all communications necessarily involve the use of symbols.

But because all expression necessarily requires the use of symbols, it does not necessarily follow as a matter of logic that First Amendment protection is or should be available for all symbolic expressions. The "speech" protected by the First Amendment might be limited to expressions in which the symbols employed consist of conventional words. The Supreme Court has found so restrictive a reading of the First Amendment to be unacceptable. Significantly, in First Amendment cases, the Court often refers to "freedom of expression" as the equivalent of freedom of speech. Justice OLIVER WENDELL HOLMES'S "free trade in ideas" may not be reduced to mere trade in words. It is the freedom to express ideas and feelings, not merely the freedom to engage in verbal locutions, that must be protected if the First Amendment's central values are to be realized.

In COHEN V. CALIFORNIA (1971) the Supreme Court held that the emotive form of speech is as entitled to First Amendment protection as is its cognitive content. Emotive expression can be fully as important as intellectual, or cognitive, content in the competition of ideas for acceptance in the marketplace. Of course, most communications encompass both cognitive and emotive content. But even if a communication is substantially devoid of all cognitive content, its emotive content surely lies within the First Amendment scope. Symphonic compositions or nonrepresentational art are protected against governmental censorship, notwithstanding their lack of verbal or cognitive content.

Of course, not all conduct should be regarded as "speech" within the meaning of the First Amendment. Not even the most ardent free speech advocate would contend that all legislation regulating human conduct is subject to First Amendment restrictions. If, as the Court stated in the O'Brien opinion, the First Amendment is not to apply to a "limitless variety of conduct," what standards should be applied in determining whether given restrictions on conduct constitute First Amendment abridgment of symbolic speech?

If government's purpose in restricting is to suppress the message conveyed by the conduct, then the state should not be heard to deny the actor's claim that the conduct in question was intended to communicate a message. Such a message-restricting motivation by the state should also establish that the conduct in question constitutes symbolic speech. But such a conclusion does not necessarily imply that the speech is entitled to First Amendment protection. Even speech in words may in some circumstances be subordinated to a counter-speech interest. Likewise, no First Amendment ABSOLUTISM will protect communicative conduct. In some contexts symbolic speech may be overbalanced by counter-speech interests. If, however, the asserted or actual counter-speech interest is simply commitment to a particular view of the world—political, ethical, aesthetic, or otherwise—this interest will not justify abridgment of the right to express a contrary view, either by words or by conduct.

Just as First Amendment principles apply equally to expression in the symbols of the English or French languages, for example, the same principles govern when the symbols are of neither of these languages, nor of any conventional language. The crucial question under the First Amendment is whether meaningful symbols are being employed by one who wishes to communicate to others.

The courts have resisted equating symbolic speech with verbal speech because of a fear of immunizing all manner of conduct from the controls of the law. This fear is unjustifiable; it stems from a false premise as to the First Amendment protection accorded to verbal speech. In fact, speech in words is not immune from regulation. For example, an interest in excluding trespassers will justify abridging the verbal speech of those who wish to speak on property from which they may properly be excluded. Similarly, words that presage an imminent and likely BREACH OF THE PEACE will justify regulation just as much as if the idea be conveyed by nonverbal symbols. These are but two of many instances when verbal speech is subordinated to counter-speech interests.

According full and equal status to symbolic speech under the First Amendment will not open the floodgates to abuses, immunizing O'Brien's "apparently limitless variety of conduct" from legal regulation. Recognition of such equality of forms of expression would mean that no one will be penalized because he chooses to communicate—or is able to communicate—only in a language other than conventional words. We shall all be the richer for such recognition.