Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it.
While writing the majority opinion for United States v. O'Brien, Chief Justice Warren described a series of guidelines used to determine whether a law that restricts speech violates the First Amendment.
ACLU attorneys representing the students argued that the armbands constituted a form of symbolic speech and, because their demonstration was suppressed, their First Amendment rights were unconstitutionally restrained.
[2] Justice Fortas, delivering the opinion of the court, held the following: "On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse.
To help himself and future justices determine what may be protected under the free speech clause, he developed a series of requirements that laws must meet in order to stay out of conflict with the First, and thus be considered constitutional, known now as the O'Brien test.
Justice Harlan wrote "[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."
[7] A college student had hung a U.S. flag on his window, upside down and adorned with peace signs, in May 1970 as to protest the government's actions in the invasion of Cambodia and the Kent State shootings.
[8] In 1984, during a protest against the policies of the Reagan administration in Dallas, Texas, Gregory Lee Johnson doused an American flag that was given to him by a fellow demonstrator with kerosene and set it alight while those around him chanted "America the red, white and blue, we spit on you."
Building upon Spence, Justice Brennan wrote that because such other actions in relation to the flag (such as saluting, and displaying) are considered to be a form of expression, so must too the burning be, and that Johnson's protest was "'Sufficiently imbued with elements of communication' to implicate the First Amendment."
The Supreme Court unanimously ruled in favor of the organizers, that the message they wanted to convey was expressive speech and protected by the First Amendment, and thus could deny the LGBT group from participation.