Johnny can't read or write, but just watch him work: Assessing the constitutionality of mandatory high school community service programs

St. John's Law Review, Fall 1997 by Farrell, James C

IV. SYMBOLIC SPEECH

A. Defining Expressive Conduct

The Supreme Court, in Stromberg v. California, extended First Amendment protection beyond spoken or written expression to encompass communicative conduct.63 Since Stromberg, however, the Court has failed to articulate and apply consistently a test for determining whether given conduct is sufficiently imbued with expressive elements so as to be protected by the First Amendment.

In Spence v. Washington, the Court attempted to define the ambit of expressive conduct protected by the First Amendment.64 In a per curiam opinion, the Supreme Court reversed Spence's conviction for affixing a peace symbol to an American flag and displaying it from his window in violation of the state flag misuse statute.65 The Court established a two-part inquiry to determine whether this conduct constituted speech for the purposes of the First Amendment. First, the actor must possess "[a]n intent to convey a particularized message."66 Second, there must be a sufficient likelihood that the particularized message, viewed under the circumstances in which the conduct occurred, would be understood by those who viewed it.67

While the Spence test provided a guide for identifying expressive conduct, the Court failed to apply this test in cases where it sought to evaluate purportedly expressive conduct.68 The Court's failure to apply consistently its own test "strongly suggest[ed] that whatever its virtues, the Spence test ... [had] limited utility."69 Furthermore, as Professor Laurence Tribe noted, the Court's failure to articulate a basis for differentiating between speech and expressive conduct meant that "any particular course of conduct [could] be hung almost randomly on the 'speech' peg or the `conduct peg as one [saw] fit."70

The Supreme Court, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, partially dissipated the cloud of uncertainty surrounding the distinction between speech and conduct.71 The Court specifically castigated the articulation of the Spence test by some lower courts which required an intent to convey a "particularized message."72 Requiring a "narrow, succinctly articulable message" would, in the eyes of the Court, leave unprotected the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll."73

Hurley's abrogation of the requirement that a particularized intent be present vitiates the Spence test. In determining whether conduct is sufficiently expressive to trigger constitutional protection, the proper inquiry involves analyzing the nature of the activity as well as the context and environment in which it is performed. Only by analyzing the conduct in the light of the surrounding circumstances can a court ascertain whether the "activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."74

B. Regulating Expressive Conduct

While the Court has not fashioned a precise framework for determining whether certain "expressive" acts trigger constitutional protection, the Court has delineated the boundaries of government regulation of constitutionally protected expressive activity. In United States v. O'Brien, the Court fashioned a fourpart test for determining when a governmental interest sufficiently justifies the regulation of expressive conduct: