Eleanor Finch
Symbolic speech, which includes nonverbal and nonwritten forms of communication, is generally protected by the First Amendment unless it causes a direct threat to another individual or public order. The Supreme Court has recognised symbolic speech as a protected form of expression, but it is not always clear-cut. In the case of Spence v. Washington, the Court developed a two-prong test to determine if symbolic speech qualified for First Amendment protections.
| Characteristics | Values |
|---|---|
| Protected by the First Amendment | Yes, unless it causes a specific, direct threat to another individual or public order |
| Nonverbal and nonwritten forms of communication | Flag burning, wearing armbands, burning draft cards |
| Intent | To convey a particularized message |
| Circumstances | The likelihood was great that the message would be understood by those who viewed it |
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What You'll Learn
- Symbolic speech is generally protected by the First Amendment unless it causes a direct threat to another individual or public order
- The Supreme Court has recognised symbolic speech as a protected form of expression
- Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing armbands and burning draft cards
- The O'Brien test helps determine what may be protected under the free speech clause
- The Spence test developed a two-prong test to determine if symbolic speech qualified for First Amendment protections
Symbolic speech is generally protected by the First Amendment unless it causes a direct threat to another individual or public order
Symbolic speech is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order. Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing armbands and burning draft cards.
In Tinker v. Des Moines Independent Community School District (1969), a school district attempted to prohibit students from wearing black armbands to protest the war. The Supreme Court held that the ban was a suppression of student symbolic expression and therefore a First Amendment violation.
In Spence v. Washington, the Court developed a two-prong test to determine if symbolic speech qualified for First Amendment protections. Under the Spence test, the action must have an intent to convey a particularised message and, in the surrounding circumstances, the likelihood was great that the message would be understood by those who viewed it.
However, Chief Justice Warren wrote that while the First Amendment does protect freedom of speech, it does not protect all things that may be labelled "symbolic speech". For example, O'Brien's protest was not protected because the United States had a compelling interest in preventing the destruction or mutilation of draft cards.
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The Supreme Court has recognised symbolic speech as a protected form of expression
Symbolic speech is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order. Symbolic speech has long been a part of U.S. history, with patriots erecting liberty poles to protest British governance before the Revolutionary War. The Supreme Court has recognised symbolic speech as a protected form of expression, although it has wrestled with the issue. In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court held that a school district's ban on students wearing black armbands to protest the war was a suppression of student symbolic expression and therefore a First Amendment violation. In Spence v. Washington, the Court developed a two-prong test to determine if symbolic speech qualified for First Amendment protections. Under the Spence test, the action must have an intent to convey a particularised message and, in the surrounding circumstances, the likelihood must be great that the message would be understood by those who viewed it. However, Chief Justice Warren wrote that while the First Amendment does protect freedom of speech, it does not protect all things that may be labelled "symbolic speech". As such, O'Brien's protest was not protected because the United States had a compelling interest in preventing the destruction or mutilation of draft cards.
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Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing armbands and burning draft cards
In more modern times, the Supreme Court has recognised symbolic speech as a protected form of expression. In Tinker v. Des Moines Independent Community School District (1969), a school district attempted to prohibit students from wearing black armbands to protest the war. The Supreme Court held that the ban was a suppression of student symbolic expression and therefore a First Amendment violation.
However, it is important to note that not all symbolic speech is protected by the First Amendment. In the case of O'Brien v. United States, Chief Justice Warren wrote that while the First Amendment does protect freedom of speech, it does not protect all things that may be labelled "symbolic speech". O'Brien's protest was not protected because the United States had a compelling interest in preventing the destruction or mutilation of draft cards. To help determine what may be protected under the free speech clause, Chief Justice Warren developed a series of requirements that laws must meet, now known as the O'Brien test.
In Spence v. Washington, the Court developed a two-prong test to determine if symbolic speech qualified for First Amendment protections. Under the Spence test, the action must have an intent to convey a particularised message and, in the surrounding circumstances, the likelihood must be great that the message would be understood by those who viewed it.
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The O'Brien test helps determine what may be protected under the free speech clause
Symbolic speech, which includes nonverbal, nonwritten forms of communication such as flag burning, wearing armbands, and burning draft cards, is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order.
In the case of *Tinker v. Des Moines Independent Community School District* (1969), the Supreme Court held that a school district's ban on students wearing black armbands to protest the war was a suppression of student symbolic expression and therefore a First Amendment violation.
In the per curiam decision of *Spence v. Washington*, the Court developed a two-prong test, known as the Spence test, to determine if symbolic speech qualified for First Amendment protections. Under this test, the action must have an intent to convey a particularized message and, in the surrounding circumstances, the likelihood must be great that the message would be understood by those who viewed it.
To help determine what may be protected under the free speech clause, Chief Justice Warren developed a series of requirements that laws must meet to stay out of conflict with the First Amendment and thus be considered constitutional. These requirements are now known as the O'Brien test. The O'Brien test helps to ensure that laws do not infringe on protected speech while also allowing the government to enact laws that further important or substantial government interests unrelated to the suppression of speech.
In conclusion, the O'Brien test provides a framework for determining what types of symbolic speech may be protected under the free speech clause of the First Amendment. By requiring that laws meet certain criteria, the test helps to balance the protection of free speech with the government's interest in maintaining public order.
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The Spence test developed a two-prong test to determine if symbolic speech qualified for First Amendment protections
Symbolic speech is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order. Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing armbands and burning of draft cards.
In the case of Spence v. Washington (1974), the Court developed a two-prong test to determine if symbolic speech qualified for First Amendment protections. This became known as the Spence test. The Spence test states that the action must:
- Have an intent to convey a particularised message
- In the surrounding circumstances, the likelihood was great that the message would be understood by those who viewed it
The Spence test was affirmed in Texas v. Johnson, though without focus on the "surrounding circumstances" phrase. However, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston challenged whether a "particularized message" must be present. There has been a circuit split between whether Spence or Hurley apply.
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Frequently asked questions
Symbolic speech is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order.
Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing armbands and burning of draft cards.
Chief Justice Warren developed a series of requirements that laws must meet in order to stay out of conflict with the First Amendment and thus be considered constitutional.
