George Mason Law Review Civil Rights Law Journal


A. Expressive Conduct and Symbolic Expression



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A. Expressive Conduct and Symbolic Expression

The United States Supreme Court has held that some forms of conduct, such as nude dancing38 and flag burning,39 may rise to the level of speech, provided that certain conditions are satisfied.40 Notably, as Justice O’Connor observed in recognizing cross burning as speech, “the First Amendment protects symbolic conduct as well as pure speech.”41 First *553 Amendment scholar Rodney Smolla refers to this as “the symbolism principle.”42

 

But the Court has made clear that not all conduct is symbolic. As Chief Justice Roberts explained for a unanimous Court in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., “we have extended First Amendment protection only to conduct that is inherently expressive.”43 The Court has stated, for example, that “[b]eing ‘in a state of nudity’ is not an inherently expressive condition,”44 and that it has “not automatically concluded . . . that any action taken with respect to our flag is expressive.”45



 

Indeed, “[c]onduct cannot be labeled ‘speech’ whenever a person intends to express an idea.”46 There must, instead, be both a particularized message intended by the actor, as well as a great likelihood that the message will be understood as intended by those who view it in the surrounding circumstances.47 This, as Professor Robert Post writes, is “known as the Parcell test,”48 after the case from which it arose, Parcell v. Washington. Post criticizes the Parcell test in part because “it locates the essence of constitutionally protected speech exclusively in an abstract triadic relationship among a speaker’s intent, a specific message, and an audience’s potential reception of that message.”49 More recently, and in stark contrast, Professor Randall Bezanson lauds Parcell as “a useful linear model of communication,”50 under which “free speech presumes a speaker intending to send a message to an audience that reasonably understands the message.”51

 

*554 The Parcell test requires that a particularized message be intended.52 Thus, while wearing certain clothing may constitute speech under the First Amendment in some circumstances,53 a generalized and vague desire to express one’s individuality or cultural values through clothing choice does not.54 On the other hand, wedding ceremonies are speech under the First Amendment because, as the Ninth Circuit observed, they “convey important messages about the couple, their beliefs, and their relationship to each other and to their community.”55



 

Honking a car horn makes a sound, but is it speech for purposes of the First Amendment? In Washington v. Immelt, the Supreme Court of Washington considered whether an ordinance that banned honking a horn as a public disturbance--that is, “for purposes other than public safety”--on the rationale that it “impermissibly burden[ed] protected expression.”56 Citing the Supreme Court’s decision in the flag-burning case of Texas v. Johnson, Washington’s high court found that “[c]onduct such as horn honking may rise to the level of speech when the actor intends to communicate a message and the message can be understood in context.”57 Applying this standard, the court reasoned that there were:

numerous occasions in which a person honking a vehicle horn will be engaging in speech intended to communicate a message that will be understood in context. Examples might include: a driver of a carpool *555 vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says “honk if you support our troops,” wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner.58

 

 



As the next section illustrates, questions involving the meaning of speech stretch far beyond the expressive conduct scenarios addressed here.

 




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