Note: This is an educational course, not legal advice.
Speech is not only words. Wearing an armband, burning a flag or refusing to salute can carry a message. The Court asks whether conduct is meant to convey a particular message likely to be understood (Spence v. Washington, 1974). If so, it can be "symbolic speech," and the content distinction decides the level of review.
Why it works
The key step is O'Brien's third prong: is the government's interest unrelated to the message? A draft-card law protects records whatever the burner believes; a flag law protects the flag as a symbol because burning it sends a message the state dislikes. Congress answered Johnson with the Flag Protection Act of 1989, and the Court struck that down too in United States v. Eichman (1990). In Tinker v. Des Moines Independent Community School District (1969), students' black armbands protesting the war were protected pure expression; the school's rule targeted that one symbol while allowing others.
Key idea
Expressive conduct can be speech. A law aimed at conduct for reasons unrelated to its message gets the O'Brien test (intermediate review); a law aimed at the message (flag burning in Texas v. Johnson) gets strict scrutiny and usually falls.
Worked example: A fire code
A city bans all open fires in public parks to prevent wildfires. A protester burns a flag in a park and is fined under the fire ban. Which test, and result?
- Burning a flag in protest is expressive conduct.
- But the fire ban applies to every fire, whatever its message: the interest (wildfire prevention) is unrelated to expression.
- So O'Brien applies; the ban is within the city's power, serves a substantial interest and restricts expression no more than needed.
Answer: O'Brien test; the fine is likely valid.
Worked example: A flag law
A state bans burning the U.S. flag "in a manner that casts contempt upon it." Which test?
- The law turns on contempt, that is, on the message the act sends.
- Under Texas v. Johnson, it is related to expression, so strict scrutiny applies.
Answer: Strict scrutiny; the law is likely invalid.
Common mistake
Thinking O'Brien means symbolic speech is unprotected. O'Brien gives intermediate review when a law targets conduct for reasons unrelated to its message; Johnson shows the result changes when the law targets the message. Check the third prong first.