Expressive Conduct and Symbolic Speech — O'Brien to Texas v. Johnson

Not all speech is verbal. When a person burns a flag, wears an armband, marches in a parade, refuses to stand for the Pledge of Allegiance, or burns a draft card, they communicate a message — and the First Amendment protects that communication. The doctrine of expressive conduct (sometimes called symbolic speech) holds that the First Amendment protects conduct that is sufficiently communicative — when the actor intends to convey a particularized message and circumstances are such that the message is likely to be understood by those who observe it. The challenge the doctrine must address is that all conduct can be described as speech (a bank robbery is "communicating" something), and no conduct is pure speech (spoken words involve the physical conduct of moving air through one's vocal cords). Courts have addressed this by developing a threshold test for when conduct receives First Amendment protection and then a framework for evaluating government regulation of expressive conduct. The leading frameworks emerged from two famous cases: United States v. O'Brien (1968), which upheld a federal law against burning draft cards even though David O'Brien burned his card as a Vietnam War protest — because the law served a substantial government interest unrelated to suppressing the anti-war message; and Texas v. Johnson (1989), which struck down Texas's flag desecration law — because Texas was specifically targeting the communicative impact of flag burning, not incidentally regulating expressive conduct for other reasons. The distinction between laws targeting the message of expressive conduct (unconstitutional) and laws regulating conduct for reasons unrelated to its communicative impact (permissible if the O'Brien test is met) remains the central framework for evaluating government regulation of all forms of symbolic expression.

Current Law (2026)

Legal Authority

• U.S. Const. amend. I — "Congress shall make no law...abridging the freedom of speech" — extends to expressive conduct meeting the Spence threshold
• Stromberg v. California, 283 U.S. 359 (1931) — Early recognition that displaying a red flag (communist symbol) is protected expression; "liberty of political discussion" includes symbolic expression
• Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) — Students wearing black armbands to protest the Vietnam War is protected speech; school may not suppress political expression without showing substantial disruption
• United States v. O'Brien, 391 U.S. 367 (1968) — Federal law criminalizing draft card destruction upheld under four-part test; the law serves a substantial government interest (maintaining a selective service system) that is unrelated to suppressing the anti-war message, and restricts no more speech than necessary
• Spence v. Washington, 418 U.S. 405 (1974) — Flying a flag upside-down with a peace symbol taped to it is protected expression; the Spence test establishes the threshold for when conduct is sufficiently expressive to receive First Amendment protection
• Texas v. Johnson, 491 U.S. 397 (1989) — Flag burning at a political demonstration is constitutionally protected expression; Texas's flag desecration law specifically targeted the communicative impact of flag burning and could not survive strict scrutiny
• United States v. Eichman, 496 U.S. 310 (1990) — Federal Flag Protection Act (Congress's response to Johnson) struck down on the same grounds; the government's interest in protecting the flag as a symbol was inherently related to suppressing the message of flag burning
• Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) — Indiana's public nudity law applied to nude dancing upheld; nude dancing receives some First Amendment protection but the state's substantial interest in protecting public order and morality is unrelated to suppressing the expressive element and satisfies O'Brien
• City of Erie v. Pap's A.M., 529 U.S. 277 (2000) — Erie's public nudity ordinance applied to a nude dancing establishment upheld; O'Brien framework applies; government's interest in combating negative secondary effects (crime, prostitution) is unrelated to suppressing nude dancing as expression

Key Mechanics

The expressive conduct doctrine applies First Amendment protection to non-verbal conduct that communicates an idea or message. The threshold test (Spence v. Washington, 1974) asks whether the speaker had a particularized message and whether the audience was likely to understand it. If conduct crosses the threshold into protected expression, government regulation must satisfy the O'Brien test (from United States v. O'Brien, 1968, the draft card burning case): the regulation is constitutional if (1) it is within the government's constitutional power; (2) it furthers an important or substantial government interest; (3) the interest is unrelated to suppression of free expression; and (4) the incidental restriction on expression is no greater than necessary. If the regulation targets the message itself (like Texas's flag burning law), strict scrutiny applies, not the more permissive O'Brien test — this is the rule established in Texas v. Johnson (1989), which held that burning an American flag as political protest is protected expression.

How It Works

The Threshold Question: When Is Conduct Speech?

The First Amendment extends to conduct that is sufficiently communicative. Spence v. Washington (1974) established the threshold test: conduct receives First Amendment protection if (1) the actor intended to convey a particularized message, and (2) the circumstances were such that those who observed the conduct were likely to understand the message. Both elements are required.

Intent to convey a message: The actor must be trying to communicate something. A person who burns their draft card in their backyard as refuse does not have a First Amendment claim. A person who burns it publicly in the town square as a protest against conscription intends the symbolic communication. The act's context, audience, and surrounding circumstances reveal the communicative intent.

Likelihood of understanding: Even with communicative intent, the conduct must be sufficiently expressive that observers would likely understand what is being communicated. A person who drives at 60 mph on an empty highway while intending to "protest the speed limit" is not engaged in expressive conduct under the Spence test — there is no likely audience who would understand a communicative message from the driving speed.

The Spence test confirms that conduct occupies a spectrum: at one end is pure speech (clearly protected); at the other end is non-expressive conduct (clearly not protected); in the middle is expressive conduct that qualifies for First Amendment protection. The vast majority of communicative activity — protest marches, wearing symbolic clothing, burning flags, displaying signs, participating in sit-ins — is sufficiently expressive to pass the threshold.

The O'Brien Test: Regulating Expressive Conduct for Non-Speech Reasons

Even when conduct is sufficiently expressive to trigger First Amendment protection, the government may regulate it if its regulatory interest is unrelated to the communicative element of the conduct. United States v. O'Brien (1968) arose when David O'Brien burned his Selective Service registration certificate on the steps of the South Boston Courthouse to protest the Vietnam War. He was convicted under a federal statute making it a crime to "destroy or mutilate" a Selective Service certificate.

O'Brien argued that burning his draft card was constitutionally protected symbolic speech. Chief Justice Warren's majority agreed that the act was expressive but upheld the conviction under a four-part test:

1. The regulation must be within the constitutional power of government — the selective service system is within Congress's war powers.

2. It must further a substantial or important governmental interest — the draft card requirement serves the substantial interest of maintaining an efficient selective service system: draft cards facilitate communication between inductees and local boards, enable rapid mobilization, and serve administrative functions.

3. The governmental interest must be unrelated to the suppression of free expression — this is the critical prong. The government's interest in the draft card is not that the card carries no anti-war message; the interest is purely administrative. The government would have the same interest in intact draft cards whether or not anyone ever used them for political protest.

4. The incidental restriction on alleged First Amendment freedoms must be no greater than essential — destroying the physical card is prohibited; all other forms of anti-war protest, including verbal protest and other symbolic acts, remain fully protected.

The O'Brien test applies to regulations that are content-neutral in purpose — that is, regulations motivated by a governmental interest wholly independent of the speech's communicative impact. The test is more lenient than strict scrutiny but more demanding than rational basis.

Laws That Target the Message: Texas v. Johnson

Texas v. Johnson (1989) is the landmark expressive conduct case distinguishing O'Brien from laws that target expression because of its message. Gregory Lee Johnson burned a United States flag outside the 1984 Republican National Convention in Dallas as part of a political protest. He was convicted under a Texas law making it a crime to desecrate a venerated object (the flag) in a way that would seriously offend observers.

Justice Brennan's 5-4 majority held the Texas law unconstitutional. The critical move was identifying whether the government's interest was related to suppressing flag burning's communicative impact or unrelated to it. Texas argued its interest was in preventing breaches of the peace (through the "serious offense" standard) and in preserving the flag as a national symbol.

The majority rejected both:

Breach of the peace: Texas's interest in preventing breaches of the peace is a legitimate interest, but the statute's "serious offense" element specifically targeted speech because of the reaction it might provoke. The government cannot prohibit speech because it offends onlookers — Cohen v. California (1971) had already established that the government cannot silence offensive speech to protect listeners' sensibilities. A breach-of-the-peace interest must be content-neutral; here, it was content-specific.

Preserving the flag as a symbol: This interest is inherently related to suppressing the message of flag burning. The government's interest in maintaining the flag's symbolic integrity is the interest in preventing the flag from being associated with protest, dissent, and criticism. That is precisely the message flag burning conveys. A law that protects a symbol from symbolic desecration is necessarily a law that targets the communicative impact of that desecration.

Because Texas's interests were both related to suppressing the expressive element of flag burning, the law could not survive the intermediate scrutiny of O'Brien (which requires the interest to be unrelated to suppression of expression) and certainly could not survive strict scrutiny.

Congress responded by enacting the Flag Protection Act of 1989; the Supreme Court struck it down in United States v. Eichman (1990), finding the same constitutional defect: Congress's interest in protecting the flag was inherently tied to suppressing the message of flag burning.

Expressive Conduct Across Contexts

The O'Brien/Johnson framework applies across a wide range of expressive conduct:

Student expression: Tinker v. Des Moines (1969) — students' black armbands protesting Vietnam are protected speech; schools may not prohibit expression absent substantial disruption to educational environment. Schools may regulate student dress and expression under O'Brien-like standards when the interest is unrelated to viewpoint suppression, but may not target specific political messages.

Nude dancing: Barnes v. Glen Theatre (1991) and City of Erie v. Pap's A.M. (2000) — nude dancing in clubs is marginally protected expression (it is communicative) but the state's substantial interest in public order, decency, and preventing secondary effects (prostitution, crime around adult entertainment establishments) is unrelated to the expressive element of the dancing. The O'Brien test is satisfied; states may require performers to wear minimal pasties and G-strings without violating the First Amendment.

Burning and desecration of other objects: R.A.V. v. City of St. Paul (1992) — a cross-burning prohibition that targeted only cross burning as a racial hate symbol was content-based and struck down. But anti-arson laws that prohibit all burning (including politically motivated burning) are valid content-neutral regulations unrelated to the expressive element.

Campaign finance: Buckley v. Valeo (1976) — expenditure of money in political campaigns is expressive conduct; the government's interest in preventing corruption must be assessed under strict scrutiny when applied to political spending.

Military uniforms: The government may prohibit wearing unauthorized military uniforms because the government's interest in maintaining the integrity of military dress is unrelated to any message the wearer might intend to send.

How It Affects You

If you are a protester, activist, or demonstrator: Symbolic protest — wearing armbands, displaying symbols, burning copies of documents, marching in ways that convey a message — is constitutionally protected as long as your conduct is sufficiently communicative (intent + likely observer understanding). Flag burning is protected; you cannot be prosecuted for it. However, laws that regulate your conduct for non-speech reasons may still apply: a permit requirement for large gatherings, an anti-arson law, a noise ordinance, or a prohibition on blocking traffic applies to your symbolic protest under the O'Brien test if the government interest is genuinely unrelated to suppressing your message. Document that your protest is communicative: have signs, distribute written materials, and make the expressive purpose clear — this strengthens your First Amendment claim if the conduct alone is ambiguous.

If you are a student in a public school: Tinker gives you the right to engage in political expression — wearing political armbands, buttons, clothing with political messages — even in school, unless the school can demonstrate that your expression causes substantial disruption to educational operations. School dress codes that target specific political messages are more vulnerable than general, content-neutral uniform policies. A dress code prohibiting all political messaging is more defensible than one prohibiting only messages critical of the school administration. If a school prohibits your specific political expression without evidence of disruption, consult civil liberties counsel — Tinker may protect you.

If you are a government official or law enforcement officer: When enforcing laws against conduct that may be expressive, distinguish between laws that target conduct for content-neutral reasons (fire codes, traffic rules, noise ordinances) and laws that specifically target expressive conduct because of the message it sends. The former may validly be applied to symbolic protest under O'Brien; the latter face strict scrutiny under Texas v. Johnson. Do not arrest protesters for symbolic acts (burning copies of documents, wearing symbols, marching) unless the activity violates genuinely content-neutral laws. Charges based on the communicative impact of conduct — "you burned the flag because you wanted to offend people" — will not survive constitutional scrutiny.

If you are a business owner whose activities include expressive conduct: Barnes and Erie show that businesses engaged in expressive activities (nude dancing, political merchandise, symbolic services) retain First Amendment protection for the expressive element of their services, but can be regulated under O'Brien for the non-expressive elements. If your business is regulated, assess whether the regulation targets the expressive content of your activities or serves a substantial government interest unrelated to the expression. A regulation targeting only expressive businesses engaged in disfavored messages faces strict scrutiny; a content-neutral regulation that incidentally affects your business may survive O'Brien.

State Variations

The expressive conduct doctrine is a federal constitutional rule binding all government actors. State variation:

State flag desecration laws: Following Texas v. Johnson and United States v. Eichman, state flag desecration laws are unconstitutional; most have been repealed or remain on the books unenforced. Prosecution under these laws would face immediate First Amendment challenges under Johnson.

State restrictions on symbolic protest: Several states have enacted laws specifically targeting environmental protesters who block pipelines, roads, or critical infrastructure. These laws are sometimes drafted to impose enhanced penalties on protesters who use "symbolic" means (chaining themselves to machinery, blocking equipment). Courts have assessed whether these laws are content-neutral regulations of conduct or targeted suppression of environmental advocacy; most have upheld them as applying to physically obstructive conduct regardless of political viewpoint.

State nudity laws: Following Barnes and Erie, states may impose minimally restrictive requirements on nude dancing in commercial establishments under the O'Brien test. States vary in how aggressively they apply these laws and in the secondary effects evidence they have gathered to support the regulations.

Flag desecration as government speech: After Texas v. Johnson, Congress has repeatedly attempted to amend the Constitution to permit flag desecration laws; the proposals have passed the House multiple times but failed to obtain the two-thirds Senate majority required for a constitutional amendment. Without a constitutional amendment, flag desecration laws remain unconstitutional.

Pending Legislation

• Flag Protection Amendment: Constitutional amendments to permit flag desecration laws have been introduced in multiple Congresses and periodically pass the House; the Senate has never achieved the two-thirds required for a constitutional amendment. The most recent major Senate vote failed 66-34 in 2006 — one vote short of the required two-thirds. Such an amendment remains unlikely to be ratified.
• Pipeline and infrastructure protest laws: Over twenty states have enacted laws creating new offenses or enhanced penalties for protest activities targeting pipelines, power plants, and other critical infrastructure. These laws continue to be challenged on First Amendment grounds, with courts applying O'Brien to assess whether the laws target expressive conduct for non-speech reasons or are genuine content-neutral safety regulations.

Recent Developments

• 2019–2024 — Infrastructure protest laws: State laws targeting protest near pipelines, oil facilities, and critical infrastructure multiplied following the Dakota Access Pipeline protests. Courts have applied O'Brien and content-neutrality analysis; most but not all such laws have been upheld as addressing physical obstruction rather than expressive conduct.
• 2022 — Student speech after Mahanoy Area School District v. B.L. (2021): The Court's extension of Tinker principles to off-campus student speech (a student's Snapchat post critical of the school's cheer team was protected) has generated litigation about when schools can discipline students for off-campus expressive conduct; the line between on- and off-campus symbolic expression remains contested.
• 2023 — Sidewalk chalk protests: State and local governments have faced First Amendment challenges to prosecution of protesters for chalking protest messages on public sidewalks; courts have applied O'Brien and public forum analysis to these cases.
• 2024–2026 — Pro-Palestinian protest conduct: Encampments, symbolic blocking of buildings, and flag-burning at college campuses have generated disputes about whether campus protest conduct is sufficiently expressive to require First Amendment analysis and whether universities may apply content-neutral conduct regulations under O'Brien.