Tinker v. Des Moines In December 1965, a group of five students, including lead plaintiff John Tinker and his sister Mary Beth Tinker, wore black
armbands overlaid with a white
peace sign between December 16 and New Years Day. The principals of the students' schools had previously threatened to suspend any students who participated in the protest. Despite the warning, the small group of students proceeded to carry out their dissent, and were duly suspended.
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. The court voted 7–2 in favor of Tinker, finding that the suspension had violated the students' First Amendment rights.
''United States v. O'Brien'' "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. A sizable crowd, including several agents of the
Federal Bureau of Investigation, witnessed the event. Immediately after the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety inside the courthouse. After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had
burned his registration certificate because of his beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate, which, with his consent, were photographed. For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts. He did not contest the fact that he had burned the certificate. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his anti-war beliefs, as he put it, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." The court ruled 7–1 against O'Brien. In the opinion of the court, Chief Justice Warren wrote that while the First Amendment does protect freedom of speech, it does not protect all things that may extraneously be labeled "symbolic speech". As such, O'Brien's protest was not protected because the United States had a
compelling interest in preventing the destruction or mutilation of draft cards. 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.
Spence v. Washington 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. He was arrested and convicted under a Washington state statute that barred "improper use" of the flag, including adorning it with decorations. The Supreme Court ruled
per curiam that the statute was unconstitutional as it did not consider the intent of speech of displaying the flag. In the opinion, the Court devised a two-prong test to determine if actions can qualify for First Amendment protections: "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.". This doctrine became known as the
Spence test.
Texas v. Johnson 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." He was later arrested and convicted on a flag desecration law in Texas, and sentenced to one year in prison and a $2,000 fine. The court ruled 5 to 4 in favor of Johnson. 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." He also explained that the relevance of the ''O'Brien'' test is limited "in which 'the governmental interest is unrelated to the suppression of free expression'", as the Texas law in question had its interest in preventing any violent reaction that may spring from those witnessing the burning of the flag. This case helped solidify the condition that any law that inhibits freedom of speech must have an important and compelling interest to do so.
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston In 1992, an LGBT group was refused to allow to participate in Boston's parade in celebration of
St. Patrick's Day and
Evacuation Day by the parade organizers, who said the group's identity did not fit the theme of the parade. 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. Justice
David Souter wrote in the opinion that the "particularized message" from
Spence was too limited, and that a "narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a 'particularized message', would never reach the unquestionably shielded painting of
Jackson Pollock, music of
Arnold Schoenberg, or Jabberwocky verse of
Lewis Carroll."
Hurley conflict with
Spence and
Johnson created a
circuit split on evaluating symbolic speech for constitutional protection. ==References==