82 Pages Posted: 25 Mar 2010
Date Written: 2008
In this article, McGoldrick undertakes the difficult task of distinguishing between expressive conduct that should be treated as speech, whether called pure speech or speech plus, and expressive conduct that is simply conduct. In Part I, he traces the Supreme Court's historical treatment of symbolic speech. In West Virginia State Board of Education v. Barnette, the Court called symbolic gestures “a short cut from mind to mind.” The more modern test comes from Spence v. Washington, which defined symbolic speech as being “imbued with elements of communication” and having “a particularized message” as to which “the likelihood was great that the message would be understood.” McGoldrick defines all symbolic speech cases as falling within three categories: (1) gestures and symbols whose meanings are almost instantly known; (2) things closely associated with speech, like marching and picketing, which are better classified as aids in communicating than communication itself; and (3) play acting or theater pieces, like the burning of the flag, which grab our attention like few other things can. In Part III, he refutes the common claim that the government has “a freer hand” in regulating symbolic speech than pure speech. In Part IV, McGoldrick focuses on the Spence case and later Supreme Court cases involving symbolic speech. He then traces the lower courts' application of Spence. McGoldrick concludes the article with summary of the current status of the Spence test.
Keywords: symbolic speech, supreme court, freedom of speech
JEL Classification: K39
Suggested Citation: Suggested Citation
McGoldrick, James M., Symbolic Speech: A Message from Mind to Mind (2008). Oklahoma Law Review, Vol. 61, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1574372