Indiana Law Review


IVote

Symabollc Speech

I. Introduction

Is freedom of nonverbal expression a casus omissus from the
first amendment? In 1791' when the first ten amendments were
adopted as the Bill of Rights of the United States Constitution, no
mention was made respecting freedom of expression.'^ Madison,'
Jefferson/ and others^ had written and discussed the necessity of
adding additional items to the Constitution; and although their
views were rejected by many,* they did manage to prevail. The

^At the first session of the new Congress, a Bill of Rights, including the
first amendment, was proposed for adoption by the states and became a part
of the Constitution December 15, 1971. See W. Hachen, The Supreme Court
ON Freedom of the Press 1 (1968).

^U.S. Const, amend. I.

^Madison announced his intention to discuss amendments to the Consti-
tution on May 25th. See 2 B. Schwartz, The Bill of Rights: A Documentary
History 1006 (1971).

''On March 18, 1789, Thomas Jefferson wrote to David Humphreys
stating

:

I am one of those who think it a defect that the important rights,
not placed in security by the frame of the constitution itself, were

not explicitly secured by a supplementary declaration.

14 The Papers of Thomas Jefferson 676-79 (1899).
^See 1 J. Hare, American Constitutional Law (1889). Hare describes

a discussion between Madison and Hamilton as follows:

Power, so they argued, tends not only to increase in force and

volume in its onward course, but to escape through unforeseen breaks

and channels from the dikes by which it is confined. The restraints

should therefore be so explicit that they cannot be misunderstood.

Id. at 506. See also 1 H. Ames, Proposed Amendments to the Constitl-tion
of the United States (1895); 1 H. Von Holst, The Conshtutional and
Political History OF the United States (1889). . . -

^See B. Mitchell & L. Mitchell, A Biography of the Constitution
OF THE United States (1964). An example of the rationale followed by an

opponent to the Bill of Rights is seen in Sedgwick's words. He considered the

idea of a Bill of Rights a reductio ad ahsurdum. He stated:

Inherent rights made a long list. Why did not the committee
declare a man should have a right to wear his hat, get up, go to bed
when he pleases? Government did not intend to violate the right of

free speech and press.

Id, at 191. Eldridge Gerry of Massachusetts disagreed with Sedgwick and

reproved him for trifling with a serious matter. Another example of the

1009



1010 INDIANA LAW REVIEW [Vol. 9:1009

first amendment as approved by the Founders prohibited Congress
from making any law ''abridging the freedom of speech, or of the
press."^ But nowhere in the first amendment was there a prohibi-
tion of laws abridging freedom of nonverbal conduct, freedom of
thought, or freedom of symbolic speech.

Thomas Jefferson, in a letter to David Humphreys dated
March 18, 1789, wrote that certain rights needed security by a
declaration supplementary to the Constitution. Included within

these rights needing protection were the "rights of thinking, and
publishing our thoughts by speaking or writing, the right of free
commerce, and the right of personal freedom."® Jefferson's views
on freedom of thought and speech were in a minority when the
First Congress assembled in April of 1789.' Two hundred and ten
different amendments were proposed by the eight states repre-
sented, and with duplications omitted, there were almost a
hundred different substantive provisions presented. Five of the
eight states sought guarantees of freedom of the press, yet only

three added freedom of speech as well.'*^ Although freedom of
speech was included within the Bill of Rights, it is questionable
whether it was intended as anything more than a reiteration of
freedom of the press. Unlike freedom of religion, assembly, and
right to petition the government for a redress of grievances, free-
dom of speech and press are included within the same clause,
without a semicolon separating them as two distinct items.'' For

rationale taken by an opponent to the Bill of Rights is displayed in the words
of this countryman:

Of a very different nature, tho' only one degree better than the
other reasoning, is all that sublimity of nonsense and alarm, that has

been thundered against it in every shape of metaphoric terror, on the

subject of a bill of rights, the liberty of the press, rights of con-

science, rights of taxation and election, trials in the vicinity, freedom

of speech, trial by jury, and a standing army. These last are un-

doubtedly important points, much too important to depend on mere
paper protection. For, guard such privileges by the strongest expres-

sions, still if you leave the legislative and executive power in the
hands of those who are or may be disposed to deprive you of them

—

you are but slaves.

Sherman, Letters of a Countryman, in Essays on the Constitution of the
United States 218-19 (P. Ford ed. 1892) (italics omitted).

^U.S. Const, amend. I.

^14 The Papers of Thomas Jefferson 676-79 (1899).
^2 B. Schwartz, The Bill of Rights: A Documentary HiffroRY 983

(1971).

'^U.S. Const, amend. I.

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peace-



1976] SYMBOLIC SPEECH 1011

many years following the adoption of the amendmenc, the cases
centered around freedom of the press."* Freedom of speech seemed
to be nothing more than a restatement of the written freedoms. In
light of the minor role freedom of speech played in the First Con-
gress, it is highly unlikely that the Founders considered nonverbal
communication.

Today, however, freedom of speech is seen as distinct from
freedom of the press. With this recognition have come restrictions
on the absolute wording of the first amendment in cases involving
obscenity,'^ loudspeakers,'^ hostile audiences,'^ subversive speech,'

captive audiences,'^ and slander.'® Although it might appear that

ably to assemble, and to petition the Government for a redress of
grievances.

An interpretation of the first amendment discloses the view that in spite of
its absolute wording it was not intended as such:

That this amendment was intended to secure to every citizen an
absolute right to speak, or write, or print, whatever he might please,

without any responsibility, public or private, therefor, is a supposi-

tion too wild to be indulged by any rational man. This would be to

allow to every citizen a right to destroy, at his pleasure, the reputa-

tion, the peace, the property, and even the personal safety of every

other citizen.

3 J. Story, Commentaries on the Constitution of the United States

731-32 (1833).

^^See 1 Z. Chafee, Government and Mass Communications 34-35

(1947) ; See also 2 T. Cooley, Constitutional Limitations 876, 881, 883-86

(1927).

'^See, e.g., Stanley v. Georgia, 394 U.S. 557 (1969); Ginsberg v. New
York, 390 U.S. 629 (1968); Ginzburg v. United States, 383 U.S. 463 (1966);

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Mas-
sachusetts, 383 U.S. 413 (1966); Roth v. United States, 354 U.S. 476 (1957).

'""See, e.g., Kovacs v. Cooper, 336 U.S. 77 (1949); Saia v. New York,

334 U.S. 558 (1948).

'^See e.g., Gregory v. City of Chicago, 394 U.S. Ill (1969); Feiner v.

New York, 340 U.S. 315 (1951); Terminiello v. City of Chicago, 337 U.S. 1

(1949); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
'"'See, e.g., Communist Party v. Whitcomb, 414 U.S. 441 (1974); Bran-

denburg V. Ohio, 395 U.S. 444 (1969); Keyishian v. Board of Regents, 385

U.S. 589 (1967); Dennis v. United States, 341 U.S. 494 (1951); Whitney v.

California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925) ;
Abrams v. United States, 250 U.S. 616 (1919) ; Debs v. United States, 249

U.S. 211 (1919) ; Frohwerk v. United States, 249 U.S. 204 (1919) ; Schenck

V. United States, 249 U.S. 47 (1919).

'^See, e.g., Public Utilities Comm'n v. Pollack, 343 U.S. 451 (1952);

Martin v. City of Struthers, 319 U.S. 141 (1943). See also Black, He Cannot

Choose But Hear: The Plight of the Captive Atiditor, 53 Colum. L. Rev. 960

(1953).

'^See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ; Meyer

V. Teamsters Joint Council 53, 416 Pa. 401, 206 A.2d 382,
cert, denied. 382

U.S. 897 (1965) ; Fenstermacher v. Indianapolis Times Pub. Co., 102
Ind. App.

189, 1 N.E.2d 655 (1936).



1012 INDIANA LAW REVIEW [Vol. 9:1009

the courts have continually restricted the broad wording of the
first amendment, there is one area in which they have expanded
it—symbolic speech.

The concept of symbolic speech emanates from the 1967 case
of Uyiited States v. O'Brien."^ On March 31, 1966, David Paul
O'Brien burned his draft card on the steps of the South Boston

Courthouse. He was subsequently convicted of violating a federal
statute which made the knowing destruction or mutilation of such
a certificate a criminal offense.^° The Court of Appeals for the
First Circuit reversed O'Brien's conviction, holding that the federal

statute violated the freedom of speech clause of the United States
Constitution.^' The Supreme Court, however, reinstated the dis-
trict court's conviction.^^ Despite the fact that O'Brien's conviction

^'391 U.S. 367 (1968). Many people feel that symbolic speech really em-
anates from three cases prior to O'Brien. The initial case may have been
Stromberg v. California, 283 U.S. 359 (1931). In this case appellant was con-
victed for violating the California Penal Code, which prohibited the public dis-
play of **any flag, badge, banner or device ... as a sign, symbol or emblem of
opposition to organized government." Id. at 361. The action was clearly conduct
and not a verbal form of communication. Although the Court mentioned that
there was a necessity for free political discussion, it overturned Stromberg's
conviction on fourteenth amendment grounds. A second case involving conduct
as opposed to "pure" speech arose in 1943. In Board of Educ. v. Barnette, 319
U.S. 624 (1943), students were expelled from a school for refusing to pledge
allegiance to the flag. Here again, the activity was nonverbal expression. In
this case, the Supreme Court resorted to the first amendment. However, the
Court held the expulsion to be a violation of freedom of religion and not
freedom of speech. A third case preceding O'Brien was Brown v. Louisiana,
383 U.S. 131 (1966). Brown, in opposition to the segregationist policy prac-
ticed by a local library, sat down in a silent protest. He was convicted of
breach of peace in violation of a Louisiana statute. The Supreme Court
reversed Brown's conviction. Basing the decision on the first amendment right
to peaceably assemble, the Court stated that :

[T]hese rights are not confined to verbal expression. They
embrace appropriate types of action which certainly include the right
in a peaceable and orderly manner to protest by silent and reproach-
ful presence, in a place where the protestant has every right to be, the
unconstitutional segregation of public facilities.

Id. at 141-42. Although the Court referred to the first amendment in these
three cases, O'Brien is the first case in which symbolic speech is analyzed in
detail as an outgrowth of the first amendment.

'^°50 U.S.C. § 462(b) (3) (1965), amending 50 U.S.C. § 462(b) (3) (1948).
The statute reads in part: "[W]ho forges, alters, knowingly destroys, know-
ingly mutilates, or in any manner changes any such certificate or any nota-
tion duly and validly inscribed thereon . . . ."

= '376 F.2d 538 (1st Cir. 1967).

^"^See Alfange, Free Speech and Symbolic Conduct: The Draft-Card
Buming Case, 1968 Sup. Ct. Rev. 1 (1968).

Despite the Warren Court's record of defending the civil liber-
ties of the political dissenter against legislative attack, it coyly chose

in this case to accept the law uncritically on its face and to avoid



1976] SYMBOLIC SPEECH lOl.'i

was reinstated, the Court characterized the burning of a draft
card as speech and applied a strict scrutiny test to determin?^
whether the federal statute could stand.'' The Court stated "that
when 'speech* and 'nonspeech' elements are combinrd in the same
course of conduct, a sufficiently important Kovernmental interest
in regulating the nonspeech element can justify incidental limita-
tions on First Amendment freedoms."^^ In requiring a "sufficiently
important governmental interest," the Court closely examined the
federal statutes and required the Government to show a strong
necessity for infringing upon the first amendment freedom. In
O'Brien, the Court decided that the Government's responsibility to
raise and support armies constituted a sufficiently compelling
reason^^ for holding valid the federal statute which prohibited the
burning of a draft card.^* Thus, despite the fact that O'Brien's
conviction was reinstated, this case stands as the precursor of all
symbolic speech cases.

One definition of speech is "communication or expression of
thoughts in spoken words."^^ A second definition is "something

recognition of the manifest congressional purpose. Perhaps the epi-

sode serves largely as another reminder of Justice Holmes* observa-

tion that "many things that might be said in time of peace . . . will
not be endured so long as men fight."

Id, at 52. See also Schenck v. United States, 24& U.S. 47, 52 (1919).

^^ Strict scrutiny, as opposed to a rational basis test, involves a careful

examination by the Court of the state interest. Only if the state interest is of
a compelling nature will the Court accept the infringement of a basic right.

The Court will apply this strict scrutiny test in cases where a suspect class
or a fundamental right is involved. For cases in which the high scrutiny test

was triggered by the Court's finding of a suspect class, see, e.g., Graham v.
Richardson, 403 U.S. 865 (1971) (alienage) ; Loving v. Virginia, 388 U.S. 1

(1967) (race); McLaughlin v. Florida, 379 U.S. 184 (1964) (race); Oyama
V. California, 332 U.S. 633 (1948) (national origin); Korematsu v. United

States, 323 U.S. 214 (1944) (national origin). For examples of cases employ-

ing a high scrutiny test based upon fundamental rights, see, e.g., Village of

Belle Terre v. Boraas, 416 U.S. 1 (1974) (freedom of association) ; Dunn v.
Blumstem, 405 U.S. 330 (1972) (right to vote) ; Kramer v. Union Free School

Dist., 395 U.S. 621 (1969) (right to vote) ; Shapiro v. Thompson, 394 U.S. 618

(1969) (interstate travel); Griswold v. Connecticut, 381 U.S. 479 (1965)

(right af marital privacy) ; NAACP v. Alabama, 357 U.S. 449 (1958) (free-
dom of association) ; Griffin v. Illinois, 351 U.S. 12 (1956) (the right to appeal

a criminal conviction).

2^391 U.S. at 376.

2^For further discussion and development of the compelling governmental

interest doctrine, see, e.g., Sherbert v. Verner, 374 U.S. 398, 406 (1963);

NAACP V. Button, 371 U.S. 415, 438 (1963); Bates v. City of Little Rock
361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464 (1958);
Thomas v. Collins, 323 U.S. 516, 530 (1945).

2^391 U.S. at 377.

27Webster's Third New International Dictionary (1961).



1014 INDIANA LAW REVIEW [Vol. 9:1009

that is spoken: an uttered word."^® Speech involves the encoding

and decoding of sounds verbally produced through a manipulation

of one's mouth.^' The definition of speech, however, does not in-

clude expression communicated through body language, conduct,

or thought. The O'Brien case changed the definition of speech for

constitutional purposes to include these types of nonverb<il com-

munication. It stands as a landmark of expanding the scope of the

word speech, not only as interpreted by the First Congress, but

also as it is used in everyday language.

The O'Brien case was merely a beginning for the protection

of symbolic speech. The extension of the first amendment has gone
beyond draft card burning to include flag desecration,^^ grooming

and dress codes,^^ nude entertainment,^^ buttons and badges," and

musical expression.^^ In these areas the courts have found conduct

with a definite message to be speech and thus protected by the first

amendment guarantee. Many commentators have termed this type
of conduct to be "speech-plus."^^

In these later cases, however, the courts have employed a dif-

ferent level of review from the strict scrutiny applied in O'Brien,

In the majority of cases arising subsequent to the O'Brien decision,

the courts have only required a showing of a rational basis for

state action which infringes on symbolic speech. The following
discussions of flag desecration, grooming and dress codes, nude

entertainment, buttons and badges, and musical expression show

that the courts place symbolic speech in different strata from

verbal communication.

2'R. Jeffrey & 0. Peterson, Speech 44-46 (1971).
^^See discussion of flag desecration cases at text accompanying notes

36-69 infra,

^^See discussion of grooming and dress code cases at text accompanjang

notes 70-87 infra.

^^See discussion of nude entertainment cases at text accompanying notes

88-113 infra.

^^See discussion of buttons and badges cases at text accompanying notes

114-36 infra.

^*See discussion of musical expression cases at text accompanying notes

137-63 infra.

^^See Kalven, The Negro and the First Amendment 206-07 (1966)

;

Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21
U.C.L.A.L. Rev. 29 (1973); Weber, Clashing Symbols in the First Amend-
ment Arena, The Growing Implications of Street v. New York, 17 St. Louis
U.L.J. 433 (1973) ; Yarbrough, Justice Black and His Critics on Speech-Plus

and Symbolic Speech, 52 Texas L. Rev. 257 (1974).



1976] SYMBOLIC SPEECH 10 15

II. Flag Desecration

Cases involving flag desecration statutes have been numerouH
and have generated much discussion by commentators.'' The first
and most renowned case is Street v. New York.'' Mr. Street burned
the American flag'" on a New York City street corner after learn-
ing that civil rights leader James Meredith had been shot.'' This
act resulted in his arrest for violating a New York statute which
prohibited desecration of the American flag.'° At the time Street
burned the flag, there were approximately forty persons observing
him. Further, he could be heard saying, ''If they let that happen
to Meredith we don't need an American flag.'"'

Street was convicted and given a suspended sentence. The
United States Supreme Court reversed the conviction of the lower
courts'' and remanded the case. In so doing the Court analyzed
four lines of inquiry,^' one of which involved whether the burning

^^See, e.g., Mittlebeeler, Flag Profanation and the Law, 60 Ky. L.J. 885
(1972); Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972
WASH. U.L.Q. 193 (1972); Note, Freedom of Speech and Symbolic Conduct:
The Crime of Flag Desecration, 12 Ariz. L. Rev. 71 (1970) ; Comment, Con-
stitutional Laiv—Symbolic Speech—Colorado Flag Desecration Statute, 48
Denver L.J. 451 (1972); Note, Exploiting the American Flag: Can the Law
Distinguish Criminal from Patriot? 30 Md. L. Rev. 332 (1970) ; Note, Flag
Desecration—The Unsettled Issue, 46 Notre Dame Law. 201 (1970); Note,
Flag Desecration Under the First Amendment: Conduct or Speech, 32 Ohio
S.L.J. 119 (1971); Note, Symbolic Expression: Flag Desecration—Attitudes
and the Law, 5 Suffolk U.L. Rev. 442 (1971) ; Comment, Flag Desecration
Statutes in Light of United States v. O'Brien and The First Amendment, 32
U. Pitt. L. Rev. 513 (1971) ; Note, Flag Desecration: A Constitutionally Pro-
tected Activity?, 7 U. San Francisco L. Rev. 149 (1972) ; 5 Akron L. Rev.
157 (1972); 22 Case W. Res. L. Rev. 555 (1971); 1970 Wash. U.L.Q. 517
(1970) ; 73 W. Va. L. Rev. 179 (1970).

^7394 U.S. 576 (1969).

^^Appellant burned a 48 star American flag which he had displayed on
national holidays. A possible argument for the appellant, unmentioned in the
case, is that in 1966 a 48 star flag was not the American flag. Alaska and
Hawaii, the 49th and 50th states respectively, were admitted In 1959.

^'394 U.S. at 578.

"^^This statute makes it a misdemeanor "publicly to mutilate, deface,
defile, or defy, trample upon or cast contempt upon either by words or act any
flag of the United States." N.Y. Penal Law § 1425, subd. 16, par. d (1909).
In 1967, § 1425, subd. 16, was superseded by § 136 of the General Business
Law, which in par. d defines the offense in similar language. See N.Y. Gen.
Bus. Law §136 (McKinney 1968).

-^'394 U.S. at 579.
^220 N.Y.2d 231, 229 N.E.2d 187, 282 N.Y.S.2d 491 (1967).

'^^The four lines of inquiry examined by the Court were:

(1) whether the constitutionality of the "words" part of the

statute was passed upon by the New York Court of Appeals; (2)
whether, if appellant's conviction may have rested in whole or in
part on his utterances and if the statute as thus applied is unconsti-



1016 INDIANA LAW REVIEW [Vol. 9:1009

of the flag is a form of expression entitled to protection. The Court
noted that a conviction on the words alone could not be upheld,
because Street was not inciting anyone to do any unlawful act/*
Nor could a conviction be justified on the possible tendency of
appellant's words to provoke violent retaliation/^ Further, the
conviction could not be sustained on the premise that the words
used by appellant would likely shock passersby/* This left the issue

of whether the burning of the flag was a form of expression pro-
tected by the Constitution. On this issue, the Court concluded that
although disrespect for the flag should be deplored, it was neces-
sary to see whether there was an infringement of the constitu-
tional guarantee of "freedom to be intellectually . . . diverse or

even contrary" and the "right to differ as to things that touch
the heart of the existing order.'*^^ Since Street's conviction may
have rested upon his words rather than the burning of the flag,
it could not be upheld.''®

If faced with a flag desecration case in 1971 or 1972 one could

best predict the result by tossing a coin.*' Jurisdictions differed on

tutional, these factors in themselves require reversal; (3) whether
Street's words may in fact have counted independently in his con-
viction; and (4) whether the "words" provision of the statute, as
presented by this case is unconstitutional.

394 U.S. at 581.

^7rf. at 591. See also Yates v. United States, 354 U.S. 298, 318-19 (1957)

;

Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949).
-^^394 U.S. at 592. See also Chaplinsky v. New Hampshire, 315 U.S. 668,

574 (1942), in which the "fighting words" doctrine is discussed.

^^394 U.S. at 592. See also Cox v. Louisiana, 379 U.S. 536, 546-52 (1965)

;

Edwards v. South Carolina, 372 U.S. 229, 237-38 (1963) ; Cantwell v. Con-
necticut, 310 U.S. 296 (1940).

^=^394 U.S. at 593.

"^^In a strong dissent. Justice Fortas claimed the flag to be a special kind

of personalty. He said, "Protest does not exonerate lawlessness. And the
prohibition against flag burning on the public thoroughfare being valid, the

misdemeanor is not excused merely because it is an act of flamboyant protest."
Id. at 617. The other justices dissenting were Warren, Black, and White. See
Weber, Clashing Symbols in the First Amendment Arena, The Growing Im-
plications of Street v. New York, 17 St. Louis U.L.J. 433 (1973).

Finally, destruction of symbols is serious business akin to book

burning. It tears away at the shared basic meaning structure of a
nation's people which makes democracy possible. It does this precisely
by bypassing rational discourse about political issues. Harlan was
admirable in his desire to protect this individual; he was wise and a
more realistic defender of first amendment freedoms than Black,
Fortas, or Warren in his refusal to set a precedent before the issue
had matured. But he missed the import of the symbolic expression
issue.

Id. Sit 455.

'^'^See Note, The Flag Defilement Statutes Defiled, 5 Memphis St. U.L.



1976] SYMBOLIC SPEECH 1017

whether the enforcement of a flag desecration .statute was based
upon a legitimate state interest. For example, in Radick v. Nevj
York,'° the United States Supreme Court affirmed the defcridant'8
conviction for displaying in his art gallery a sculpture; dr^picting
"the flag ... in the form of the male sexual organ, erect and pro-
truding from the upright member of a cross."'' Although the
sculptures involved were alleged to be a protest against the Viet^
nam War, the Court did not permit the first amendment argument
to prevail." In a case involving a defendant who wore an American
flag vest," the Court affirmed the conviction under the California
desecration statute^^ because the defendant had failed to show "a
recognizable communicative aspect'' in the wearing of the vest."
Yet in another flag-vest case with a similar statute, the Second
Circuit found the statute void for overbreadth.^^

The two leading cases of 1974, Smith v. Goguen'' and Spence
V. WashingtoUy^^ failed to clarify the discrepancies in prior

decisions. In the Smith case, the defendant had worn trousers
which had a small United States flag sewn to the seat. He was
convicted of violating a Massachusetts statute," which made it a
crime to treat the United States flag with contempt in public. The
Court in this case failed to reach the first amendment issue and

Rev. 896 (1975). The author of this law review note summarized the status
of flag desecration cases in the statement:

It appears that flag-wearing may or may not be 'symbolic speech'
per se; nevertheless, adornment with the 'Stars and Stripes' is pro-

tected, no matter how debased the position of the flag might be on
one's apparel. If the banner is in any way adjunct to an expression of
opinion, its use is protected by the First Amendment, no matter how
insulting such use may be. The only exception is that if violent re-
sponse is forthcoming from the public, or an intent to debase the flag

can be proven, then a defilement conviction may be upheld.
Id. at 405.

^°401 U.S. 531 (1971), affg per curiam by an equally divided Court 26

N.Y.2d 114, 257 N.E.2d 30, 308 N.Y.S.2d 846 (1970).
5^26 N.Y.2d at 117, 257 N.E.2d at 31, 308 N.Y.S.2d at 847.

^^The decision was 4-4, and thus the lower court was affirmed. Justice

Douglas did not participate in the decision.

"People V. Cowgill, 274 Cal. App.2d 923, 78 Cal. Rptr. 853 (1969), appeal

dismissed, 396 U.S. 371 (1970).

^^The California statute read that a person was guilty of a misdemeanor

who "publicly mutilates, defaces, defiles or tramples upon any . . . flag (of

the U.S.)". Cal. Mil. and Vet. Code § 614(d) (West 1955). The statute was

declared unconstitutional in 1970, after the decision in CoiugilL

"396 U.S. at 371.

^^Thoms V. Smith, 334 F. Supp. 1203 (D. Conn. 1971), affd sub tiom.

Thorns V. Hefferman, 473 F.2d 478 (2d Cir. 1973).

^^415 U.S. 566 (1974).

^M18 U.S. 405 (1974).
s'Mass. Gen. Laws Ann. ch. 264, § 5 (1968).



1018 INDIANA LAW REVIEW [Vol. 9:1009

affirmed the district court's decision*° that the Massachusetts

statute was unconstitutionally vague and overbroad.*' However,
Justice Powell's opinion implied that a law which punished mis-
treatment of the flag could be valid. He stated that "certainly
nothing prevents a legislature from defining with substantial spe-
cificity what constitutes forbidden treatment of United States
flags."^^

In the Spence case, defendant hung a United States flag from
the window of his apartment in Seattle, Washington. The flag was
upside down, and a peace symbol was attached to the front and
back." The defendant was arrested for violating Washington's
improper flag use statute, which prohibits placing "any word,
figure, mark, picture, design, drawing or advertisement" upon a
flag of the United States or the State of Washington.*^ Unlike

Smith, the Court in this case reached the first amendment issue,
but in doing so took a position contrary to the one presented by
Justice Powell in Smith, The per curiam decision" in Spence
rested upon a recognition of communicative connotations from the
use of flags.** It was clear that the defendant intended to convey
a particularized message and it was likely that a viewer would
understand that message.*^ Thus, the prohibition of this message
would conflict with the first amendment's guarantee of free
expression.*®

Where flag desecration statutes stand today is uncertain.*' If
one looks solely to the last Supreme Court decision, Spence, then
it would appear that a defendant with a clear message would pre-
vail on a freedom of expression basis if he desecrated his own
personal flag. However, Justice Powell's statements in Smith, and
prior cases suggest that states do have a legitimate interest in

protecting the United States flag. It is conceivable that a future

court will distinguish the Spence case from Smith and prior deci-
sions by holding that a defendant's right to freedom of expression

is only applicable if the desecration is performed within one's

^°471 F.2d 88 (1st Cir.), aff'g 343 F. Supp. 161 (D. Mass. 1972).
*'415 U.S. at 567.

"/d. at 581-82.

"418 U.S. at 406.
*^Wash. Rev. Code Ann. §9.86.020 (1961).
*^^Justices Blackmun and Douglas concurred in the result. Chief Justice

Burger and Justices Rehnquist and White dissented.
•^^The Court stated: "On this record there can be little doubt that appel-

lant communicated through the use of symbols. The symbolism included not
only the flag but also the superimposed peace sjrmbol." 418 U.S. at 410.

^7/d. at 411.

*Vd at 415.
^^See Ely, Flag Desecration: A Case Study in the Roles of Categorization

a/nd Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975).



1976] SYMBOLIC SPEECH 1010

own home. Although Spence deals extensively with freedom of
expression as a first amendment guarantee, it can easily be limited
as a right to express freely and do as one pleases only in one's own
home. The confusion of this area leaves open for courts a variety
of possible resolutions in future flag desecration cases.

III. Grooming and Dress Codes

Symbolic speech has also been dealt with in cases involving
grooming and dress codes/° The issue presented is whether wear-
ing a specific hair style, such as long hair, or a type of dress, such
as the mini skirt, is a form of expression protected by the first
amendment.^^ With regard to hair length codes, the courts lean
toward accepting them as legitimate regulations.'^ The invalida-
tions which have been made have resulted from the courts' finding
alternative rationales for unconstitutionality other than freedom

of expression.'^ The problem with using the first amendment in

^°See, e.g., Note, The Schools Versus the Long Hairs: An Exercise In
Legal Gobbledygook, 1971 Wash. U.L.Q. 89; 38 Brooklyn L. Rev. 802 (1972) ;
38 Tenn. L. Rev. 593 (1971).

''^ Prior to the O'Brien case, leading constitutional authority Alexander

Meiklejohn discussed at length speech in relation to action. He concluded that:

The distinction between speech-actions and speech-thoughts is not,

then, the distinction which we need for the proper interpretation of
the First Amendment. The fire-shouting illustration given by Mr.

Holmes tells us of one type of action, viz., criminal action, which is

not protected by the principle of freedom of speech. It does not follow

that all speech-acts are to be denied the freedom guaranteed by that

principle.

A. Meiklejohn, Political Freedom 40 (1965).

'^See, e.g., New Rider v. Board of Educ, 480 F.2d 693 (10th Cir. 1973)

;

Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) ; Freeman v. Flake, 448 F.2d

258 (10th Cir. 1971), cert, denied, 405 U.S. 1032 (1972); King v. Saddleback

Jr. College Dist., 445 F.2d 932 (9th Cir. 1971), cert, denied, 404 U.S. 1042

(1972) ; Rumler v. Board of School Trustees, 327 F. Supp. 729 (D.S.C. 1971)

;

Jeffers v. Yuba City Unified School Dist., 319 F. Supp. 368 (E.D. Cal. 1970)

;

Carter v. Hodges, 317 F. Supp. 89 (W.D. Ark. 1970) ; Livingston v. Swanquist,

314 F. Supp. 1 (N.D. 111. 1970) ; Brownlee v. Board of Educ, 311 F. Supp.

1360 (E.D. Tenn. 1970) ; Brick v. Board of Educ. 305 F Supp. 1316 (D. Colo.

1969) ; Montalvo v. Madera Unified School Dist. Bd. of Educ, 21 Cal.
App. 3d

323, 98 Cal. Rptr. 593 (1971).

^^See, e.g., Stull v. School Bd., 459 F.2d 339 (3d Cir. 1972) (due process)

;

Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) (due process) ; Bishop v. Colaw,

450 F.2d 1069 (8th Cir. 1971) (9th Amendment); Richards v. Thurston, 424

F.2d 1281 (1st Cir. 1970) (due process) ; Sear v. Mertz, 338 F. Supp.
945

(M.D. Pa. 1972) (due process) ; Berryman v. Hein, 329 F. Supp. 616 (D. Idaho

1971) (due process); Axtell v. LaPenna, 323 F. Supp. 1077
(W.D. Pa. 1971)

(due process); Martin v. Davison, 322 F. Supp. 318 (W.D. Pa. 1971)
(due

process) ; Miller v. Gillis, 315 F. Supp. 94 (N.D. 111. 1969) (equal
protection)

;

Sims v. Colfax Community School Dist., 307 F. Supp. 485 (S.D. Iowa 1970)



1020 INDIANA LAW REVIEW [Vol. 9:1009

such cases appears to be in finding that there is a message that
can be expressed and interpreted from hair length and style/'*
With respect to dress codes, the decisions are numerous and con-
flicting. The conflicts within the courts with respect to dress and
grooming codes result in what has been termed "legal gobble-
dygook."^^

On the side of permitting the regulations is the argument of
avoiding decline of academic performance/* Other interests in-

clude health/^ safety/^ aesthetic considerations/^ and discipline
problems/^ The students contesting dress and grooming codes
have used a wide variety of arguments. These include: equal pro-
tection/^ due process (expulsion without proper procedural safe-

guards)/- due process (vagueness)/^ the right to privacy/"^ the

ninth amendment right/^ and, finally, the right to free speech."*
The freedom of speech argument is tenuous. The problem

remains that a style of dress or hair, although a means of convey-
ing the message that a person is a part of the counterculture, a
''hippie," or revolutionary, does not convey a specific message to the
observer sufficient to qualify as communication, other than clas-

sifying the individual in a category. In addition to the lack of

communication on a particular subject, there seldom exists an

(due process) ; Westley v. Rossi, 305 F. Supp. 706 (D. Minn. 1969) (equal
protection).

^"^See Comment, The Legality of Dress Codes for Stvdents, 20 De Paul
L. Rev, 222 (1971).

''^Note, The Schools Versus the Long Hairs: An Exercise In Legal
Gobbledygook, 1971 WASH. U.L.Q. 89.

^^See Dunham v. Pulsifer, 312 F. Supp. 411 (D. Vt. 1970) ; Reichenberg
V. Nelson, 310 F. Supp. 248 (D. Neb. 1970).

^'See, e.g., Bishop v. Colaw, 316 F. Supp. 445 (E.D. Mo. 1970) ; Westley
V. Rossi, 305 F. Supp. 706 (D. Minn. 1969).

^^See, e.g., Gfell v. Rickelman, 313 F. Supp. 364 (N.D. Ohio 1970) ; Cash
V. Hoch, 309 F. Supp. 346 (W.D. Wis. 1970).

^'^See, e.g., Brownlee v. Board of Educ, 311 F. Supp. 1360 (E.D. Tenn.
1970).

«°5ee, e.g., Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969); Prichard v.
Spring Branch Independent School Dist., 308 F. Supp. 570 (S.D. Tex. 1970).

''See Miller v. Gillis, 315 F. Supp. 94 (N.D. 111. 1969).

"5^60, e.g., Dixon v. Board of Educ, 294 F.2d 150 (5th Cir. 1961) ; Davis
V. Ann Arbor Pub. Schools, 313 F. Supp. 1217 (E.D. Mich. 1970) ; Vought v.
Van Buren Pub. Schools, 306 F. Supp. 1388 (E.D. Mich. 1969).

"See Gfell v. Rickelman, 313 F. Supp. 364 (N.D. Ohio 1970).
''See Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert denied, 398 U.S.

937 (1970).

'^See Comment, The Legality of Dress Codes for Students, 20 De Paul
L. Rev. 222, 234 (1971).

"'See, e.g., Tinker v. Des Moines Independent Community School Dist.,
393 U.S. 503 (1969) ; Jeffers v. Yuba City Unified School Dist., 319 F. Supp.
368 (E.D. Cal. 1970).



1976] SYMBOLIC SPEECH 1021

intentional meaning that the speaker is attempting,' to convey. If
there is no communication of a specific message, there is no first
amendment ground for opposing suppression of nonspoech activi-
ties. The first amendment prohibits state regulation of such
activities only when there is communication of a specific message
and the state's purpose is to suppress the communication/'

IV. Nude Entertainment

A third aspect of symbolic speech centers around cases in-
volving nude entertainment. One of the first cases to discuss non-
verbal conduct in this field is California v. LaRue.^" The first
amendment freedom of expression v^as weighed against the twenty-
first amendment privilege to control the manner and circumstances
under which liquor is dispensed, and the twenty-first amendment
prevailed.^' The Court looked solely for a rational basis to uphold
the California Department of Alcoholic Beverage Control Regula-
tions.^° Appellant Kirby, Director of the Department of Alcoholic
Beverage Commission, opposed the "sexual conduct between
dancers and customers" resulting from ^'topless" and ''bottomless"
dancing.'^ To curtail the increased prostitution and corruption, the
Department instituted rules prohibiting certain conduct. The dis-
trict court found many of these rules to be unconstitutional.'^

^^See United States v. O'Brien, 391 U.S. 367 (1968); Nimmer, The
Meaning of Symbolic Speech Under the First Amendment, 21 U.C.L.A.L.
Rev. 29, 38-39 (1974).

^M09 U.S. 109 (1972).

^^ Repeal of Prohibition Amendment
Section 1. The eighteenth article of amendment to the Constitution of the

United States is hereby repealed.

Section 2. The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of in-

toxicating liquors, in violation of the laws thereof, is hereby pro-

hibited.

Section 3. This article shall be inoperative unless it shall have been ratified

as an amendment to the Constitution by conventions in the several
States, as provided in the Constitution, within seven years from

the date of the submission hereof to the States by the Congress.

U.S. Const, amend. 21.

^°California Dep't. of Alcoholic Beverage Control Regulations—Rules 143.3
and 143.4 (Aug. 10, 1970).

9M09 U.S. at 110-11.
92326 F. Supp. 348, 358 (1971). The court found the portions of the

statute which regulated the content of the live entertainment did not satisfy

the O'Brien test or the Supreme Court's obscenity tests. Those portions of the

regulations found unconstitutional were

:

(a) The performance of acts, or simulated acts, of 'sexual inter-

course, masturbation, sodomy, beastiality, oral copulation, flagel-

lation or any sexual acts which are prohibited by law';



1022 INDIANA LAW REVIEW [Vol. 9:1009

In reversing the district court's decision, the Supreme Court
discussed the role of expression where conduct and not speech is
involved. The majority commenced by quoting Schact v. United
States''^ in which the Court had held that "[a]n actor, like everyone
else in our country, enjoys a constitutional right to freedom of
speech, including the right openly to criticize the Government
during a dramatic performance."''* However, the Court then went
on to qualify this broad language. It noted that according to

O'Brien, constitutional protection of an individuaFs conduct is
limited to situations when a * 'communicative element" is present.'*
Although the LaRue Court found that some of these regulations
were within the limits of the constitutional protection of freedom
of expression, it noted that the California Alcoholic Beverage

Board did not completely forbid these performances.'* The crucial
factor was that the performances were in establishments with
licenses to sell liquor.''^ Restriction of nude entertainment was thus
rationally linked to the right of the board to control the serving of

liquor under the twenty-first amendment."^''

In the LaRue case, as in the original flag desecration cases''
the Court found that freedom of expression was a valid interest
of an individual but not to the extent of being a fundamental right.
Thus, although ''free speech" is considered a fundamental right,

when conduct alone is involved the courts will be sat^'sfied if a
rational basis for the state's action is found.

'°°

(b) The actual or simulated 'touching, caressing or fondling
on the breast, buttocks, anus or genitals';

(c) The actual or simulated 'displaying of the pubic hair, anus,
vulva or genitals'

j

(d) The permitting by a licensee of 'any person to remain in or
upon the licensed premises who exposes to public view any portion
of his or her genitals or anus'; and, by a companion section,

(e) The displaying of films or pictures depicting acts a live
performance of which was prohibited by the regulations quoted above.

California Dep't of Alcoholic Beverage Control Regulations—Rules 143.3 and
143.4 (Aug. 10, 1970). For a complete listing of the regulations involved, see
326 F. Supp. at 358-60.

^^398 U.S. 58 (1970).

^Vd. at 60.

'^"We cannot accept the view that an apparently limitless variety of
conduct can be labeled 'speech' whenever the person engaging in the conduct
intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367,
376 (1968).

9*409 U.S. at 118.

''Hd. at 118-19.

''See text accompanying note 36 supra.

^°°This rational basis test was elaborated upon in the decision of Crown-
over V. Musick, 9 Cal.3d 405, 509 P.2d 497, 107 Cal. Rptr. 681 (1973). In a
factual situation similar to that found in LaRue, the court concluded that the



1976] SYMBOLIC SPEECH 1023

The most recent case involving nude entertainment, Doran v.
Salem Inn, Inc,;""' indicates the Court may apply a strict scrutiny
test to statutes which regulate such activities in places which do
not serve liquor. The plaintiffs in Doran were bar or^^irators who
provided entertainment in the form of topless dancing for their
customers.'^' The Town of North Hempstead, New York, passed
a local law which prohibited this form of nude entertainment in
any public place.'°' The district court issued a preliminary injunc-
tion, finding the statute to be an infringement of the first amend-
ment, because it applied to public places other than bars and thus
was overbroad.'"^ Since no question of obscenity was at stake there
was no rationale for maintaining the statute.'^' The court further
reasoned that if this ordinance were maintained then the ''Ballet
Africains" and "Hair" would be prohibited. '°'

The invalidation of the North Hempstead ordinance was
affirmed by the United States Court of Appeals for the Second
Circuit.'"^ The court distinguished this strict approach from that
of LaRue. In LaRue, the Supreme Court upheld a regulation for-
bidding the sale of liquor by the drink where sexually provocative
entertainment was performed. But the Second Circuit specifically
noted that the statute involved in the LaRue case did not forbid
all nude performances "across the board," but only those in places
serving liquor. The North Hempstead statute in the Doran case was
an "across the board" type statute prohibiting nude entertainment
regardless of whether a bar was involved, and as such was clearly
an infringement upon freedom of speech. '°*

case did not involve either a "suspect class" or a "fundamental right." As such
the rules were valid under the police power. Present was a rational relation-
ship to the conceivable governmental purpose of furthering "public order,

morals and welfare." Id. at 415, 509 P.2d at 514, 107 Cal. Rptr. at 691.

^°U22 U.S. 922 (1975).
'"^^Id. at 924.

^o^Town of North Hempstead Local Law No. 1-1973 enacted July 17, 1973.
The district court summarized the regulation as follows:

[M]aking it unlawful (i) for any person conducting or operat-
ing any bar, lounge or other public place to permit a waitress, bar
maid or entertainer to appear with uncovered breasts, or (ii) for any
person to appear in any bar, lounge or public place with uncovered

breats (sic) or to appear in any entertainment or sketch with un-
covered breasts. The maximum penalty for a violation is a fine of
$500 or imprisonment for fifteen days, or both, each day's violation

constituting a separate violation.
364 F. Supp. 478, 479-80 (E.D. N.Y. 1973).

^°^364 F. Supp. at 483.
lo^Nudity is not per se obscene, even as to minors. See Erznoznik v. City

of Jacksonville, 422 U.S. 205 (1975).
'0*364 F. Supp. at 483.
^°^501 F.2d 18 (2nd Cir. 1974).

'^^Id. at 20-21.



1024 INDIANA LAW REVIEW [Vol. 9:1009

One of the three Doran plaintiffs, M & L, had disobeyed the
North Hempstead ordinance and had been prosecuted shortly after
the action was filed in the district court. The Supreme Court held
that Younger v. Harris' °'' and its progeny required dismissal of the
action as to M & L. However, it held that Younger did not compel
dismissal as to the other two plaintiffs, Salem Inn and Tim-RobJ"*
The first amendment analj^sis in Doran is limited to a discussion
of whether the district court abused its discretion in granting a
preliminary injunction based on a likelihood the plaintiffs would
succeed on the merits—whether the statute was likely to be de-
clared unconstitutional.'" The Court agreed with the district court
that the North Hempstead statute could restrict protected activity

:

[E]ven though a statute or ordinance may be constitu-
tionally applied to the activities of a particular defend-

ant, that defendant may challenge it on the basis of over-
breadth if it is so drawn as to sweep v/ithin its ambit
protected speech or expression . .

1 12

The North Hempstead statute was not limited to activities which
could constitutionally be restricted under LaRue, but also included
other activities without any governmental interest to counter-
balance the constitutional infringement. It was, therefore, the fact

that the prohibition of nude dancing was not limited to places that
serve liquor which made it overbroad."^

Thus, although the courts seem to be moving toward finding
a fundamental right of expression, they leave open the option of

applying a rational basis test when a statute includes an element
protected by another constitutional amendment. The significance
of nude entertainment as a whole in relation to symbolic speech
is that as in flag desecration and groming and dress code cases,
the courts have again interpreted the word speech to include an
item that is pure conduct without any verbal elements.

D. Buttons and Badges

Buttons and badges have also been deemed to be a form of
expression, and thus courts have examined restrictions of such
expression in light of the first amendment. However, as in other
areas of symbolic speech, in cases involving buttons and badges
a mere rational basis will be sufficient to validate a statute or rule.

^°'401 U.S. 37 (1971). See also Steffel v. Thompson, 415 U.S. 452 (1974) ;
Samuels v. Mackell, 401 U.S. 66 (1971).

"°422 U.S. at 930.
'''Id. Sit 932-34.

"^Id. at 933.

"Vd. at 933-34.



1976] SYMBOLIC SPEECH 102.'>

The best-known case in this area of nonverbal communicatioriH
is Tinker v, Des Moines Independent Community School Dvitrict: *

Three petitioners, junior high and high school Hiuihtntn, wore
black armbands to school in opposition to the Vietnam War.'"' The
policy of the school was that anyone wearing an armband v/ould
be asked to remove it and if he failed to do so ho would bo huh-
pended until he returned without the arml^and."*

When the three students were suspended from school they
brought an action in the United States District Court.'" The court
held for the school authorities on the basis that the regulation v/an
reasonable in order to maintain discipline in the school,'" and the
Eighth Circuit affirmed.'''

The United States Supreme Court reversed these lower courts
in a decision employing the first amendment. The Court discussed
at great length the link between passive expression and the guar-
antee of freedom of speech. '^° It concluded that the first amend-
ment permitted ^'reasonable regulation of speech-connect^.d activi-
ties in carefully restricted circumstances."'^' However, to meet the
test it was necessary to show the existence of a reasonable state
interest. In this case the record did not show a rationale which
might have justified the claimed state interest of preventing dis-
ruption caused by armbands. In delivering the majority opinion,
Justice Fortas stated that "clearly the prohibition of expression of

one particular opinion, at least without evidence that it is neces-

sary to avoid material and substantial interference with school-
work and discipline, is not constitutionally permissible.'"^^

At first glance the Tinker case appears to be quite broad in
its interpretation of free speech. It emphasized the fact that the

students were passive in their approach, and that they neither

interrupted school activities nor sought to intrude in the school

affairs or the lives of others. The only activism that resulted from
these students* form of opposition to the Vietnam War was in-
creased discussion outside of the classroom.' ^^ However, in enipha-

^'^393 U.S. 503 (1969).

^'^The three petitioners were 13, 15, and 16 years old. They were fully

aware of the school regulation that opposed the wearing of armbands in

school.

^'^393 U.S. at 504.

''^The action was brought through the students' fathers under 42 U.S.C.

§1983 (1970). 258 F. Supp. 971 (1966).

"»393 U.S. at 505.
^^'383 F.2d 988 (1967).

'20393 U.S. at 508.

'2 7d. at 513.

'22/d. at 511.

'"/d. at 514.



1026 INDIANA LAW REVIEW [Vol. 9:1009

sizing the students* passive conduct the Court did limit the scope

of the concept of a guaranteed first amendment right to freedom
of expression. ^^^ It held that symbolic speech in the schools is

protected only when it is nondisruptive as in the form of a silent
protest.^"

These words of limitation were the basis for a subsequent
decision, Guzick v, Drehiig.^'^^ The regulations of Shaw High
School in Ohio prohibited the wearing of any symbols not related
to school activities. '^^ Plaintiff, an 11th grader, wore an anti-
Vietnam War button to school. When he failed to remove the
button he was suspended from school. The district court stated,
**We are at once aware that unless Tinker can be distinguished,
reversal is required. We consider that the facts of this case clearly
provide such distinction."'^® In this case, the state's interest in

providing an atmosphere conducive to learning prevailed. Although

the Sixth Circuit conceded that the buttons were a form of expres-
sion, it noted that "unless they have some relevance to what is
being considered or taught, a school classroom is no place for the

untrammeled exercise of such right."' ^' One interesting point to
note in the Guzick case is the fact that the court specifically stated

that it is not necessary to have good order demolished to be
permitted to establish rules.' ^° It was sufficient that there was a
likelihood of disorder.'^'

Another case subsequent to Tinker also managed to establish
a sufficient state interest to prevail over the first amendment. In

^^^See^ e.g.y Brennan, The Supreme Court and the Meiklejohn Interpreta-
tion of the First Amendment, 79 Harv. L. Rev. 1 (1965) ; Emerson, Toward a
General Theory of the First Amendment, 72 Yale L.J. 877 (1963) ; Haskell,
Student Expression in the Public Schools: Tinker Distinguished, 59 Geo. L.J.

37 (1970) ; Note, The Emerging Law of Students* Rights, 23 Ark. L. Rev.
619 (1970).

^^^393 U.S. at 514. See also Note, Teachers* Freedom of Expression Out-
side the Classroom,: An Analysis of the Application of Pickering and Tinker,
8 Ga. L. Rev. 900 (1974); Note, Symbolic Speech, High School Protest and
the First Amendment, 9 J. Family L. 119 (1969) ; Note, Free Speech and the
Hostile Audience, 26 N.Y.U.L. Rev. 489 (1951). The note analyzing the ap-
plication of Pickering and Tinker summarized the effect of these cases when
a teacher's expression is involved: "The effect of these decisions is to protect
teacher expression unless it has interfered, or could reasonably have been

expected to interfere, with normal school functioning." 8 Ga. L. Rev. at 917.
'=^^31 F.2d 594 (6th Cir. 1970), cert, denied, 401 U.S. 948 (1971).

'''Ud. Sit 595.

'2®7d. The district court denied plaintiff's application for a preliminary
injunction and dismissed the complaint. 305 F. Supp. 472 (N.D. Ohio 1969).

^29431 F.2d at 600-01.

^^°7d. at 600.

'^^The court noted the prior rebelliousness of the students as support for

its decision. Id.



1976] SYMBOLIC SPEECH 1027

Slocum V, Fire & Police Commission''^ the Appellate Court of
Illinois held that a police officer could be required to wear an
American flag emblem on the sleeve of his uniform.'" Further, a
failure to comply with this police commission regulation v/as 8uffi-
eient grounds for a suspension/'^ The court rationalized the in-
fringement on the first amendment on the basis of the state's
interest in developing a sense of loyalty to the nation.'"

Both Slocum and Guzick provide limitations of Tinker through
factual distinctions. Whether a button or badge will receive the
first amendment's guarantee is based upon whether the govern-
mental interest is reasonably linked to the regulation.''* If so, the
court will likely validate the statute.

E. Musical Expression

On March 5, 1971, the Federal Communications Commission
(FCC) issued a public notice entitled "Licensee Responsibility to
Review Records Before Their Broadcast."^'' This first notice was
a result of complaints received by the FCC that the lyrics of songs
being broadcast related to drugs/'® The action taken aimed to
alleviate the alleged problem through a policing of broadcasting
by licensees.^" When confusion arose as to exactly what responsi-
bilities were placed upon the licensees by this first notice, a second
notice of explanation was issued by the Commission.^ ^° The essence

'3=8 111. App. 3d 465, 290 N.E.2d 28 (1972). -

'^'Id. at 467, 290 N.E.2d at 30.

^^"^See 6 Creighton L. Rev. 264 (1972).
135

The flag does, however, tend to develop a sense of loyalty to
nation. We regard this as an important governmental interest. Since

. a municipality has the power to prescribe a uniform for its police

force, and since display of the flag tends to promote an important

governmental interest, a flag emblem may be made a part of the
uniform.

8 111. App. 3d at 469, 290 N.E.2d at 33.

'^"See 45 N.Y.U.L. Rev. 1278 (1970).
12736 Fed. Reg. 4901 (1971).

^^"^See Fifer, Musical Expression and First Amendment Consideratiov^, 24
DePaul L. Rev. 143 (1974).

139

In short, we expect broadcast licensees to ascertain, before broad-
cast, the words or lyrics of recorded musical or spoken selections

played on their stations. Just as in the case of the foreign-language

broadcasts, this may also entail reasonable efforts to ascertain the
meaning of words or phrases used in the lyrics. While this duty may
be delegated by licensees to responsible employees, the licensee re-

mains fully responsible for its fulfillment.

36 Fed. Reg. 4901 (1971).
'^oB6 Fed. Reg. 8090 (1971).



1028 INDIANA LAW REVIEW [Vol. 9:1009

of this notice was that the licensees had an affirmative responsi-
bility to be aware of the contents of records played and to judge
the records' suitability.

^^^ From these two notices have arisen
cases presenting the constitutional question of whether the FCC
action is an abridgement of freedom of speech/ ^^

The issue presented in these cases is whether one can equate
music with speech. It has been stated that **a work of pure music
can express and—more importantly

—

convey feeling and emo-
tion." '"^^ In conveying meaning, music is essentially the same as
concepts that are expressed in words. Finding music within the

scope of the first amendment can be further justified by the fact
that so many other items such as films and parades have been
granted protection.^ '^ Those who feel that music is not comparable

141

(1) That the First Notice should not have been construed to be
a direct prohibition of any particular type of record, but rather that
the Commission's only direct imposition of will would occur in the
renewal context;

(2) that there would be no active reprisals;

(3) that there nevertheless did exist an affirmative responsi-
bility on the part of licensees to

(a) know a record's contents
(b) judge the record's suitability for broadcast, and

(c) be prepared to sink or swim by these decisions at renewal
time.

Id. at 8090-91.

^"•"^See Comment, Drug Songs and the Federal Communications Commis-
sion, 5 U. Mich. J.L. Reform 384 (1972).

'^^Fifer, supra note 138, at 161.
^'^'^See, e.g., Amalgamated Food Employees Local 590 v. Logan Valley

Plaza, Inc., 391 U.S. 308 (1968) (labor activities); Cox v. Louisiana, 379
U.S. 536 (1965) (parades and demonstrations) ; Times Film Corp. v. City of
Chicago, 365 U.S. 43 (1961) (films) ; Teamsters Local 695 v. Vogt, Inc., 354
U.S. 284 (1957) (picketing); Terminiello v. Chicago, 337 U.S. 1 (1949)
(public speeches) ; Saia v. New York, 334 U.S. 558 (1948) (use of sound
tracks); Martin v. City of Struthers, 319 U.S. 141 (1943) (solicitation);
National Broadcasting Co. v. U.S., 319 U.S. 190 (1943) (broadcasting);

United States v. One Book Entitled "Ulysses", 5 F. Supp. 182 (S.D.N.Y. 1933),
affd, 72 F.2d 705 (2d Cir. 1934) (book). An historical argument can be
noted to show the diversity intended for the first amendment. Leading con-
stitutionalist Zachariah Chafee, Jr. states

:

If 'speech' is limited ... so is 'press'. Yet that is impossible in view
of the address of the Continental Congress in 1774 to the people of
Quebec, in which freedom of the press, in addition to its political
values, is said to be important for 'the advancement of truth, science,
morality and arts in general'. . . .

Moreover, the framers would hardly have relegated science, art,
drama, and poetry to the obscure shelter of the Fifth Amendment,
. . . inasmuch as 'due process' meant mainly proper procedure until
the middle of the nineteenth century.

Chafee, Book Review, 62 Harv. L. Rev. 891, 897 (1947).



1976] SYMBOLIC SPEECH 1029

to speech state that although the lyric portion of a musical ajm-
position is clearly speech, the combination of lyric and munic
together is not susceptible of first amendment protection. '"'' This
argument is further strengthened by noting the impact that broad-
casting has on the public, therefore justifying more careful re;ru-
lation/'^

The argument reached its height in Yale Broa/lcastinfj Com-
pany V, Federal Communications Commission.' ^' Appellant, a
radio station licensee, argued that the two notices were an uncon-
stitutional burden on the first amendment right to free speech."'
He compared this case to Smith v. California,'''' in which the
Supreme Court reversed a bookseller's conviction of possession
and sale of obscene literature on the basis that although the state
might have a legitimate interest in restricting obscenity, it could
not accomplish its goal by placing on the bookseller the procedural
burden of examining every book contained within his store. The
D.C. Circuit, however, distinguished the Yale case from the Smith
case. The reasoning was that while a bookstore might contain
thousands of hours* worth of reading material, a broadcaster
would have a maximum of 24 hours' worth of material to check
each day.

A second contention on the part of the Yale appellant in op-
position to the notices requiring a licensee to police the broadcasts,

was that so many of the lyrics in songs are obscure and ambigu-
ous.' ^° He noted how many modern songs were virtually unintel-
ligible and filled completely with meaningless gibberish. The court
conceded the validity of this argument, but claimed that this should

not prevent a broadcaster from having some knowledge of the
contents of the music. The court stated that the licensees should
be required to make at least a reasonable effort to know w^hat was

'^^Fifer, supra note 138, at 159.

^'^^Id, at 157. Two other arguments presented justifying the regulation
of broadcasting by licensees were that a broadcast license is a matter of

privilege, not right; and that only a limited number of licenses can be issued,

thus the existence of a fairness doctrine. See also Barrow & Manelli, Com-
munications Technology—A Forecast of Change, Part I, 34 Law & CON-
TEMP. Prob. 205 (1969) ; Levin, The Radio Spectrtim Resource, 11 J. Law
& ECON. 433 (1968) ; Comment, The First Amendment and Regulation of
Television News, 72 COLUM. L. Rev. 746, 763 (1972).

i4747g F2d 594 (D.C. Cir. 1973). (Appeal to review a notice and order
issued by the FCC.)

'^^/d. at 595. The appellant also argued in the alternative that the notices

imposed new duties on licensees and were therefore to be the subject of rule-

making procedures. A final allegation by the appellant was that the require-
ments specified in the notices were impermissibly vague and that the FCC
had abused its discretion in refusing to clarify its position. Id.

^^'361 U.S. 147 (1959).

''HIS F.2d at 598.



1030 INDIANA LAW REVIEW [Vol. 9:1009

in the ''canned music" : **No producer of pork and beans is allowed
to put out on a grocery shelf a can without knowing what is in it
and standing back of both its contents and qualit3^"'^'

The licensees appealed the circuit court*s decision to the
Supreme Court.'" Certiorari was denied but with an eloquent dis-
sent by Justice Douglas. Justice Douglas equated music with

speech on the basis of a message emanating from the songJ^^ He
stated that ''songs play no less a role in public debate, whether they

eulogize the John Brown of the abolitionist movement, or the Joe
Hill of the union movement, provide a rallying cry such as *We
Shall Overcome', or express in music the values of the youthful

'counterculture.' "'^^ He felt it would be inconsistent with the first
amendment to require a broadcaster to censor its music'^®

A later case. Citizens Committee to Save WEFM v. Federal
Communications Commission,^ ^'' involved an appeal by a citizen's
group from orders of the FCC approving assignment of a license
for a radio station as well as the new licensee's proposal to change
the entertainment format of the station from classical to contem-
porary music. '^^ In the case, the application of music to the first

amendment was discussed in detail. The court noted that in addi-
tion to its artistic value, music can be an important mode of political
and moral expression.'^® If there is regulation of what can and can-
not be put on the air, it is possible that lyrics of popular songs
which communicate controversial ideas will be repressed.'*' On
the other hand, there is the possibility that through government
regulation of broadcasting an enhanced variety of political and
cultural viewpoints may be heard.' *° In this case the court con-
cluded that it was impossible to resolve the conflict between
diversity of viewpoints provided through controls, and freedom
from regulation. Thus, it balanced the two views and elected to

^^^Id. at 599. The court recapitulated its views on the first amendment
issue by stating that it was not expressing a value judgment on the style of
music produced. It merely felt that the licensee had the responsibility to

evaluate the music being broadcast. Id.
^"414 U.S. 914 (1973).

'^Vd. at917.

'^'Id. at 918.

^^^Id. See, e.g., Columbia Broadcasting System, Inc. v. Democratic NatT
Comm., 412 U.S. 94, 148 (1973) ; Red Lion Broadcasting Ck). v. FCC, 395 U.S.
367 (1969) ; Lamont v. Postmaster General, 381 U.S. 301, 309 (1965).

^^^506 F.2d 246 (D.C. Cir. 1974).

''Ud. at 249.

^"/d. at 251.

'^Ud.

^*>''Id. See Associated Press v. United States, 326 U.S. 1 (1945); Brandy-

wine-Main Line Radio, Inc., 473 F.2d 16 (D.C. Cir. 1972).



1976] SYMBOLIC SPEECH 1031

minimize regulation except when diversity was most seriously
threatened.'*'

Music as an aspect of the first amendment's guarantee of f re^
speech is therefore a new concept. An outgrowth of the FCCs 1971
regulations, it has expanded to many areas of broadcasting. In the
cases that have discussed the issue of whether music can be equated
with speech, the courts have held it to be within the scope of the
first amendment. However, in the Yale and WEFM cases the courts
balanced the FCC interest with the licensee's or citizen's interest
and found the FCC to prevail. In light of the courts' decisions one
can question whether the first amendment was being truly en-
forced as it should be. If the courts were in fact abiding by the first
amendment, it would follow that they would not accept merely the
rational basis for the regulation given by the FCC. The first
amendment's guarantee of free speech is a fundamental right""

and would therefore require the court to find a compelling rationale
for usurping it.'" Yet both the Yale and WEFM cases fail to men-
tion the need for a compelling interest for upholding the FCC
regulations. In both of these cases, the courts accepted the govern-

mental interest despite the fact that it resulted in an infringement

of the first amendment right to freedom of speech.

Conclusion

Freedom of speech became a written reality in 1791.'*'' Since

then it has been limited in many ways through cases in areas
which the courts have held to be permissible subjects of regula-

tion.'" Only one area, however, has benefited through time. Sym-

bolic speech or nonverbal conduct was virtually an unknown doc-

trine until 1967.'*' With the counterculture,'*' revolutions'*" and

student dissent, came a penumbra to freedom of speech—freedom
of expression.

At first, nonverbal expression was afforded the same protec-

tion as in other free speech cases.'*' This protection, however,

proved to be too broad for future courts. With the end of the

i*'506 F.2dat 252.
''25ee note 25 supra. See also Police Department v. Mosley, 408 U.S. 92

(1972) (expression of an opinion as a fundamental right).

^^^See Stroud, Sex Discrimination in High School Athletics, 6 IND L. Rev.

661, 665 (1973).

^^'^See note 1 supra.

^^^E.g. obscenity, loudspeakers, hostile audiences, subversiveness, captive

audiences, and slander. See notes 13-18 supra.

'*^See text accompanying notes 19-26 supra.

'*7T. RoszAK, THE Making of a Counterculture (1969).

'^^H. Marcuse, One-Dimensional Man 1-123 (1964) ; C. Reich, thb

Grening of America 3-21, 299-349 (1970).

'^'See text accompanying notes 19-26 supra.



1032 INDIANA LAW REVIEW [Vol. 9:1009

Warren Court came the limitations to O'Brien's holding that sym-
bolic speech is a fundamental right subject only to compelling state
interests. ^^° The limitations came in the areas of flag desecration/^'
dress and grooming codes, '^^ nude entertainment/^^ buttons and
badges/ ^^ and musical expression.' ^^ They came as factual distinc-
ions to O'Brien and as decisions which completely ignored the
need for a substantial state interest. With these cases came the
court's general rule of merely finding a rational basis for sustain-

ing the legislation or regulation.

Where do we stand today? In constitutional law, questions
such as these can never be answered. For as easily as O'BHen was
created it could be destroyed. At one extreme we have O'Brien and
at the other is the failure to recognize any conduct as speech.
Emerson noted the need to find the median when he stated

:

To some extent expression and action are always
mingled: most conduct includes elements of both. Even
the clearest manifestations of expression involve some
action, as in the case of holding a meeting, publishing a

newspaper, or merely talking. At the other extreme, a
political assassination includes a substantial measure of
expression.'^*

Courts should return to the compelling state interest test in cases

involving symbolic speech. The expansion of the doctrine to in-
clude such expressions of feeling as assassinations need not be

feared since they would hardly prevail over the obvious compelling

state interests of peace, order, and life. Nonverbal conduct which
falls within the areas of obsenity, hostile audiences, and subver-

siveness also need not be feared since they too would be surpassed

by the established state interests.

Body language has always been present, yet only now has it
come to be recognized as speech.' ^^ With the growth of new methods
of expression the first amendment needs to be adapted. But these
adaptations are being rated second class. Perhaps in time they too

will receive full class status. Perhaps in time freedom of expression

will be explained as merely a casus omissus of our Founding
Fathers.

Ellen S. Podgor
'^°Chief Justice Warren wrote the opinion for the majority in the O'Brien

decision.

'''See text accompanying notes 36-69 supra.

^^See text accompanying notes 70-87 supra.

'^^See text accompanying notes 88-113 supra.

'^"^See text accompanying notes 114-36 supra.

''^See text accompanying notes 137-63 supra.

76T. Emerson, The System of Freedom of Expression 80 (1970).
^7J. Fast, Body Language (1970).