MBE Fast Fact: Symbolic Speech

The First Amendment is heavily tested within the subject of Constitutional Law. It's not limited to the protection of verbal communications; rather, conduct is also protected provided the conduct is undertaken with the intent to communicate an idea. The difficulty lies in determining whether conduct is intended to communicate an idea; if not then the conduct will not fall within the protection of the First Amendment. Assuming that the conduct is intended to communicate an idea (and is therefore deemed symbolic speech) the following test should be applied in determining whether an attempt to regulate that conduct will be upheld:

A regulation of conduct that is meant to an express an idea will be upheld if the regulation is within the constitutional power of the government provided that the regulation also furthers an important governmental interest. In addition, and this element is essential, the governmental interest must be unrelated to the suppression of speech. Finally, the incidental burden on speech (and there is sure to be one if the conduct was intended to express an idea), must be no greater than necessary.

A classic example would be the government regulating the burning of draft cards. Certainly, those who burn draft cards intend to make a statement regarding the right of the government to draft others into war, so the conduct falls within the purview of symbolic speech. But if the government is able to prove that a regulation against that act is intended to protect the government's interest in facilitating a smooth draft, and if the government can further prove that the interest is important and unrelated to the suppression of speech, then the regulation will be upheld provided the burden on speech is no greater than necessary.