A. Introduction: Just as expression may consist of speech
accompanied by conduct (i.e., a protest march), so expression may sometimes consist solely of non-verbal actions (or symbolic speech). Symbolism can be a powerful mechanism for communicating ideas. As Jackson put it in West VA State Bd. Of Educ., symbols are “a short cut from mind to mind.” Symbolic conduct may convey an emotive significance that spoken words lack. Draft card or flag burning attract public and media attention in a way that is seldom available to the soap box orator. The U.S. Sup. Ct. has for a long time been willing to recognize that the First Am. protects certain non-verbal conduct that is symbolic speech. But the Court has been wary of giving generalized First Am. protection to any act which is an attempt to convey a message since there is a fear that granting such protection would legitimize actions like political assassinations, Patty Hearst-type robberies, or battery (as in Mitchell), etc. The U.S. Sup. Ct., as will be discussed in depth below, applies essentially two different tests to symbolic speech, depending on the statute prohibiting such symbolic speech. This is what Prof. Laurence Tribe calls the “two-track analysis” of symbolic speech. If the statute is content-neutral (as it was in O’Brien), then the O’Brien test will apply. If the statute is content-based (as it was in Tinker and Johnson), then the Court will review the statute with the more demanding standard of strict scrutiny (“the utmost scrutiny”). This approach—or “two-track analysis”—is set out most clearly by the Court in Johnson.
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