Constitutional Law
What is "Speech" Within the Meaning of the First Amendment?

The Issue:  What activities can be considered "speech" for purposes of the First Amendment?
  What happens when speech is mixed with conduct?

Congress shall make no law...abridging the freedom of speech.

The First Amendment protects against abridgements of the "freedom of speech."  Although in many cases the question of whether speech has been regulated is not in doubt, as with most restrictions on oral or written communication, in some it is an important threshold issue for courts to consider.  If the regulated activity is not "speech," then it is not protected by the First Amendment and there is no need to extend the constitutional analysis further.

In 1968, the Court considered the argument of David Paul O'Brien that he had a First Amendment right to burn his draft card on the steps of a Boston courthouse as a form of protesting U.S. involvement in the Viet Nam War.  The Court agreed that O'Brien was engaged in an expressive activity that triggered a First Amendment analysis.  The Court noted, however, that O'Brien was punished for his "conduct" (the burning of the card) and not for what he was trying to say about the war.  The Court offered in O'Brien a test for analyzing cases in which both speech and conduct elements are present: 

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Gary Johnson being arrested after burning a flag.

The O'Brien test has been used by the Court in a series of subsequent cases.  In Texas v Johnson, the Supreme Court considered another protest of U. S. policy, this time in the case of a man who burned a flag at a Republican National Convention.  In a controversial 5 to 4 decision, the Court overturned Johnson's conviction for flag burning, concluding the burning was "sufficiently imbued with elements of communication to implicate the First Amendment" and was, in fact, protected speech under the First Amendment.  Buckley v Valeo raised the issue of whether money (in the form of campaign donations or expenditures) can be considered a form of speech.  The Court concluded that it could, noting that modern campaigning is impossible without financial resources.

South Florida Free Beaches v Miami is an 11th Circuit decision.  The court in that case considered the argument that enforcement of Miami's ordinance prohibiting public nudity abridged the First Amendment right of plaintiffs to "communicate their philosophy that the human body is wholesome."  The court disagreed, suggesting that nudity had to be attached to some other expressive activity, such as dance or theater, to raise serious First Amendment issues.

In Doe v Reed (2010), the Court considered whether the signing a state referendum petition is "speech" within the meaning of the First Amendment and, if it is, whether the state's disclosure of the names of petition signers violates their First Amendment rights.  Eight members of the Court agreed that the signing of a referendum petition was "an expressive act" implicating the First Amendment.  Justice Scalia disagreed, seeing the signing as a "legislative act" not within "the freedom of speech."  On the question of whether the signers of petitions generally have a First Amendment right to keep their identities private, eight members said no, though they indicated that "unique circumstances" surrounding particular referendum might create a right to anonymity.  Justice Thomas dissented.

A good example of how what would once have been considered an economic regulation subject only to rational basis review, but what now receives closer scrutiny under the First Amendment, was a New York law that prohibited merchants from charging a surcharge to consumers who use credit cards.  At first blush this seems like a law regulating conduct, specifically the setting of prices.  But in Expressions Hair Design v Schneiderman (2017), the Court concluded that as applied to merchants like hairstylists (who might like to put up a sign such as "HAIRCUTS $20 (we charge a 3% extra for credit cards') the law restricts speech, not just conduct.  A simple price regulations, such as "hairstylists must charge no more than $20 for haircuts," would be a conduct regulation and would not present First Amendment issues, Chief Justice Roberts said in his opinion for the Court.  The Court sent the case back to the lower courts to determine whether the law might survive as a valid regulation of commercial speech.

Problem: A Florida Town's "Sagging Pants" Ordinance
Holly Beach Florida adopted an ordinance that made it "a crime to knowingly wear pants below the waistline, in a public place, in a manner that exposes a person's underwear or bare buttocks."  Supporting the ordinance, the town's mayor said, "Cities should have the right to maintain social standards of decency.  They have the right to draw the line."  Several violators challenged the ordinance.  At a hearing, the plaintiffs offered a professor of fashion design who said "the low slung pants look" began as "an expressive concept" and showed photos of people ranging from Prince Harry to Zac Efron wearing saggy pants that exposed underwear. 

Do the plaintiffs have a good First Amendment argument?  Do you see a way of distinguishing the decision in South Florida Free Beaches?  Would it violate the First Amendment for a town to adopt a Taliban-inspired ordinance that banned almost all exposure of skin?  Could a town outlaw tatoo parlors?

O'Brien v United States (1968)
Texas v Johnson (1989)
Buckley v Valeo (1976)
South Florida Free Beaches v Miami (1984)
Doe v Reed (2010)
Expressions Hair Design v Schneiderman (2017)

Scene of draft card burning from a production of "Hair." Photo by Rich Copley | LexGo.com.

1. What are the essential elements of "speech" for purposes of the First Amendment?  Is an intention to communicate essential?  Is it essential also that someone actually understand the message?
2.  Is a speaker of Greek protected if no one in her audience understands a word of the language?  Is it "speech" to send smoke signals when there is no one around to see the smoke?
3.  Are all forms of art and music "speech" within the meaning of the First Amendment? 
4.  How should courts analyze First Amendment issues when the regulated activity includes both speech and non-speech ("conduct") elements?  is the test developed by the Court in O'Brien a good one?  Do you agree with its application in that case?
5.  Doesn't speech always involve some elements of conduct, whether it is the moving of vocal cords, the placing of ink on paper, or the typing that sends a message into cyberspace?
6.  What was Johnson trying to communicate by burning an American flag?  Would he have a First Amendment argument if punished for burning a flag in his own backyard when no one was watching?
7.  Do you agree with the Court in Buckley that campaign donations and campaign expenditures should be considered a form of "speech"?  If government today could ban all campaign expenditures, what could our politics look like?
8.  Was the court in South Florida Free Beaches too quick to reject the First Amendment argument?  Is it plausible that the plaintiffs in that case were primarily trying to send a message to onlookers?  Would nude plaintiffs have a better First Amendment argument if they started dancing or kept shouting, "Hey look, we're nude and proud!"
9.  When you sign a petition are you engaged in "speech" within the meaning of the First Amendment?  What do you think of Justice Scalia's characterization of petition signing as "a legislative act" not within the freedom of speech?

Links: Flag Burning and Related Issues
Image of draft card (Viet Nam War era)

O'Brien Test for Law Incidentally Regulating Speech

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