Symbolic Speech and Expressive Conduct

Opinions & Commentaries

Nicholas Halter was charged with violating Nebraska's Act to Prevent and Punish the Desecration of the Flag of the United States after using a picture of an American flag to advertise his beer. He pleaded not guilty, claiming the statute was null and void under the Fourteenth Amendment for depriving them of the right to exercise an implied constitutional right. The Supreme Court held that no such privilege to use the American flag in an advertisement existed, and upheld Halter's conviction.

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Yetta Stromberg was convicted of a California statute that criminalized displaying a red flag in any public place “as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character.” The statute made the crime a felony. The trial court held that Stromberg should be convicted if Stromberg displayed the flag for any of the reasons specified in the statute. The California District Court of Appeals affirmed the conviction. Stromberg challenged the statute on Fourteenth Amendment grounds.

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The West Virginia State Board of Education adopted a resolution ordering that saluting the flag become “a regular part of the program of activities in the public schools,” and that all teachers and pupils “shall be required to participate in the salute honoring the Nation represented by the Flag.” It also provided that “refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.” Failure to conform was “insubordination,” dealt with by expulsion, and readmission was denied by statute until compliance. Meanwhile, the expelled child was “unlawfully absent,” and could be proceeded against as a delinquent. Parents or guardians were liable to prosecution, and, if convicted, were subject to fine not exceeding $50 and jail term not exceeding thirty days. The appellees, who identified as Jehovah’s Witnesses, brought suit in the United States District Court for an injunction to restrain enforcement of these laws and regulations. Jehovah’s Witnesses consider that the flag is a “graven image” within the meaning of the Biblical Second Commandment, and for that reason, they refuse to salute it.

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O’Brien burnt his draft card on the steps of a South Boston courthouse in protest of the Vietnam War and was found in violation of the Universal Military Training and Service Act of 1948.

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After becoming aware of a plan among some students to protest the Vietnam War by wearing black armbands during school hours, school officials in Des Moines, Iowa, specifically banned wearing armbands in their schools. Previously, students had been allowed to wear “buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism.” The students wore the armbands in violation of the new policy, were suspended, and subsequently sued.

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Appellant, Sidney Street, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag which he owned to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or “publicly [to] defy . . . or cast contempt upon [any American flag] either by words or act.” The information charged appellant with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Appellant unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected "demonstration" or "protest." Appellant was tried before a judge without a jury and convicted.

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396 U.S. 371 (1970) COWGILL v. CALIFORNIA. No. 496. Supreme Court of United States. Decided January 19, 1970. APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES. Melville B. Nimmer and Laurence R. Sperber for appellant. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General,… Read more

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The petitioner, Daniel Jay Schacht, was indicted in a United States District Court for violating 18 U. S. C. § 702, which makes it a crime for any person "without authority [to wear] the uniform or a distinctive part thereof . . . of any of the armed forces of the United States . . . ."[1] He was tried and convicted by a jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month prison term, the maximum sentence allowable under 18 U. S. C. § 702. There is no doubt that Schacht did wear distinctive parts of the uniform of the United States Army[2] and that he was not a member of the Armed Forces. He has defended his conduct since the beginning, however, on the ground that he was authorized to wear the uniform by an Act of Congress, 10 U. S. C. § 772 (f), which provides as follows:

"When wearing by persons not on active duty authorized.
.....
"(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a *60 theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force." (Emphasis added.)
Schacht argued in the trial court and in this Court that he wore the army uniform as an "actor" in a "theatrical production" performed several times between 6:30 and 8:30 a.m. on December 4, 1967, in front of the Armed Forces Induction Center at Houston, Texas. The street skit in which Schacht wore the army uniform as a costume was designed, in his view, to expose the evil of the American presence in Vietnam and was part of a larger, peaceful antiwar demonstration at the induction center that morning. The Court of Appeals' opinion affirming the conviction summarized the facts surrounding the skit as follows:
"The evidence indicates that the demonstration in Houston was part of a nationally coordinated movement which was to take place contemporaneously at several places throughout the country. The appellants and their colleagues prepared a script to be followed at the induction center and they actually rehearsed their roles at least once prior to the appointed day before a student organization called the `Humanists.'
.....
"The skit was composed of three people. There was Schacht who was dressed in a uniform and cap. A second person was wearing `military colored' coveralls. The third person was outfitted in typical Viet Cong apparel. The first two men carried water pistols. One of them would yell, `Be an able American,' and then they would shoot the Viet Cong with their pistols. The pistols expelled a red liquid which, when it struck the victim, created the impression *61 that he was bleeding. Once the victim fell down the other two would walk up to him and exclaim, `My God, this is a pregnant woman.' Without noticeable variation this skit was reenacted several times during the morning of the demonstration." 414 F. 2d 630, 632.

I

Our previous cases would seem to make it clear that 18 U. S. C. § 702, making it an offense to wear our military uniforms without authority is, standing alone, a valid statute on its face. See, e. g., United States v. O'Brien, 391 U. S. 367 (1968). But the general prohibition of 18 U. S. C. § 702 cannot always stand alone in view of 10 U. S. C. § 772, which authorizes the wearing of military uniforms under certain conditions and circumstances including the circumstance of an actor portraying a member of the armed services in a "theatrical production." 10 U. S. C. § 772 (f). The Government's argument in this case seems to imply that somehow what these amateur actors did in Houston should not be treated as a "theatrical production" within the meaning of § 772 (f). We are unable to follow such a suggestion. Certainly theatrical productions need not always be performed in buildings or even on a defined area such as a conventional stage. Nor need they be performed by professional actors or be heavily financed or elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by amateurs, have played an important part in the entertainment and the education of the people of the world. Here, the record shows without dispute the preparation and repeated presentation by amateur actors of a short play designed to create in the audience an understanding of and opposition to our participation in the Vietnam war. Supra, at 60 and this page. It may be that the performances were crude and *62 amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays.[3] Of course, we need not decide here all the questions concerning what is and what is not within the scope of § 772 (f). We need only find, as we emphatically do, that the street skit in which Schacht participated was a "theatrical production" within the meaning of that section.

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401 U.S. 531 (1971) RADICH v. NEW YORK. No. 169. Supreme Court of United States. Argued February 22, 1971 Decided March 24, 1971 APPEAL FROM THE COURT OF APPEALS OF NEW YORK. Richard G. Green argued the cause for appellant. With him on the briefs were Shirley Fingerhood and Melvin L. Wulf. Michael R. Juviler… Read more

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Overruled (in part)

Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U. S. C. §§ 1331, 1343, 2201, 2202, and 42 U. S. C. § 1983. A three-judge court was convened in accordance with 28 U. S. C. §§ 2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.[1]

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The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F. 2d 88 (1972), aff'g 343 F. Supp. 161 (Mass). We noted probable jurisdiction. 412 U. S. 905 (1973). We affirm on the vagueness *568 ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.

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Harold Omand Spence, a college student, affixed a peace symbol to his privately-owned United States flag and placed it upside down in a window on private property. He did so to express that he believed the United States stood for peace and as a response to public uproar regarding recent killings at Kent State University and the invasion of Cambodia. He was convicted under a Washington state statute that prohibited displaying the flag with items affixed to it, like the peace symbol Spence placed on his flag.

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The District Court for the Eastern District of New York originally dismissed respondent's complaint seeking declaratory and injunctive relief against a regulation promulgated by petitioner limiting the length of a policeman's hair. On respondent's appeal to the Court of Appeals for the Second Circuit, that judgment was reversed, and on remand the District Court took testimony and thereafter granted the relief sought by respondent. The Court of Appeals affirmed, and we granted certiorari, 421 U. S. 987 (1975), to consider the constitutional doctrine embodied in the rulings of the Court of Appeals. We reverse.

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In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, N. J. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. *63 Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated § 99-15B of Mount Ephraim's zoning ordinance, which described the permitted uses in a commercial zone,[1] in which the store was located, as follows:

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The issue in this case is whether a National Park Service regulation prohibiting camping in certain parks violates the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in connection with a demonstration intended to call attention to the plight of the homeless. We hold that it does not and reverse the contrary judgment of the Court of Appeals.

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During the 1984 Republican National Convention, respondent Gregory Lee Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the state, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances.

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Congress passed the Flag Protection Act of 1989 after the Supreme Court overturned a Texas statute criminalizing the knowingly offensive destruction American flag in Texas v. Johnson. The Flag Protection Act criminalized "knowingly" mutilating, defacing, physically defiling, burning, or tampling upon an American flag. The Supreme Court found the Flag Protection Act to be unconstitutional. Although it did not contain a content-based limitation like the Texas statute did, the Government's interest in protecting the "physical integrity" of the flag in order to preserve its symbolism is related to the suppression of free expression and violates the First Amendment.

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An Indiana public indecency statute prohibits, among other things, appearing nude in public. Two adult entertainment establishments and an erotic dancer sued to prevent enforcement of this statute as it applied to nude dancing. The trial court eventually held that nude dancing is not expressive activity protected by the First Amendment and upheld the statute. The Seventh Circuit Court of Appeals reversed, holding that non-obscene nude dancing is entitled to First Amendment protection. When speech and non-speech elements are combined in the same course of conduct (such as burning a draft card), the government can regulate that conduct if (1) the regulation is within the constitutional power of the government, (2) the regulation furthers a substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on the speech element of the conduct is not greater than necessary to further the substantial governmental interest. United States v. O'Brien, 391 U.S. 367 (1968).

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In mid-1990, a white juvenile in St. Paul was arrested for burning a cross inside the fenced yard of a black family. The juvenile was charged with violating St. Paul's Bias-Motivated Crime Ordinance, which prohibited the placement of any symbol on public or private property that aroused anger in others on the basis of race, color, creed, religion, or gender. The juvenile moved to dismiss this charge, claiming that it was overbroad and impermissibly content-based under the First Amendment. The trial court granted this motion. The Minnesota Supreme Court reversed, holding that the ordinance prohibited only “fighting words,” which, since the United States Supreme Court’s decision in Chaplinsky v. New Hampshire (1942), had been deemed unworthy of any First Amendment protection.

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