George Mason Law Review Civil Rights Law Journal

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C. Pure Speech

In Virginia v. Black, the Supreme Court recognized a distinction between varying types of expressive conduct and what it sometimes calls “pure speech.”72 The difference is not always easy to detect,73 and a few examples help to illustrate this roughly hewn dichotomy.


For instance, while the wearing of clothes sometimes can constitute expressive conduct, “[w]ords printed on clothing qualify as pure speech.”74 Thus, in the eyes of the majority of the Supreme Court in Cohen v. California,75 wearing of an article of clothing with the message “Fuck the Draft,” raises First Amendment interests based solely upon speech.76 Yet Cohen illustrates the elusiveness of a clean distinction between expressive *558 conduct and pure speech; as Justice Blackmun said in dissent, the case involved “mainly conduct and little speech.”77


What else constitutes pure speech? The Supreme Court has held that the wearing of black armbands affixed with peace symbols but lacking words is “closely akin to ‘pure speech,”’78 and that regulations prohibiting the disclosure of cell phone conversations target “pure speech.”79 In addition, the same year in which Brown was decided, the Court provided additional guidance on the meaning of “speech” in Sorrell v. IMS Health, Inc.80 In Sorrell, the Court struck down a Vermont law that restricted healthcare agencies from selling prescriber-identifying information to so-called data miners.81 In rejecting Vermont’s argument that the law was “a mere commercial regulation”82 that did not regulate speech but “simply access to information,”83 Justice Kennedy observed that “the creation and dissemination of information are speech within the meaning of the First Amendment.”84


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