Symbolic speech

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. Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers did not address this issue in the Bill of Rights is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression. Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.

Although the First Amendment only limited the Congress, symbolic speech has also restricted state governments starting with Gitlow v. New York (1925).

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. These guidelines must remain neutral in relation to the subject of the speech at hand (i.e., a speech that criticizes government action and is believed to violate a law must be treated the same way as a speech under identical circumstance, but praises the government as opposed to criticizing.) The O'Brien test is not meant to be the absolute deciding factor in cases involving non-verbal speech, but an additional tool to invoke against prohibitions.
The O'Brien test is thus: The law in question must

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 the dates of 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 First Amendment.Justice Fortas, delivering the opinion of the court, held the following:

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