MBE Fast Fact: Symbolic Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.

The First Amendment is heavily tested within the subject of Constitutional Law. Protection is not limited to verbal communications; rather, symbolic conduct is also protected provided the conduct is undertaken with the intent to communicate an idea.

The difficulty lies in determining whether symbolic conduct is intended to communicate an idea; if not then the conduct will not fall within the protection of the First Amendment. In analyzing such cases, the courts ask whether the speaker intended to convey a particular message and whether it is likely that the message was understood by those who viewed it. Assuming that the conduct is intended to communicate an idea (and is therefore deemed symbolic speech protected by the First Amendment) the following test should be applied in determining whether an attempt to regulate that conduct will be upheld:

A regulation of symbolic conduct that is meant to an express an idea will be upheld provided that the regulation furthers an important governmental interest. In addition, the governmental interest must be content-neutral in the sense that it is unrelated to the suppression of speech.

Finally, the incidental burden on speech must be no greater than is necessary to further the government's interest. In other words, the regulation must prohibit no more speech than is essential to further the government's interest.