Doctrine and Practice of Symbolic Speech: Overview

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

Very little expression is “mere” speech. If it is oral, it may be noisy enough to be disturbing,1 Footnote
E.g., Saia v. New York, 334 U.S. 558 (1948) ; Kovacs v. Cooper, 336 U.S. 77 (1949) . and, if it is written, it may be litter;2 Footnote
E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939) . in either case, it may amount to conduct that is prohibitable in specific circumstances.3 Footnote
Cf. Cohen v. California, 403 U.S. 15 (1971) . Moving beyond these simple examples, one may see as well that conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist in flying a particular flag as a symbol4 Footnote
Stromberg v. California, 283 U.S. 359 (1931) . or in refusing to salute a flag as a symbol.5 Footnote
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) . Sit-ins and stand-ins may effectively express a protest about certain things.6 Footnote
In Brown v. Louisiana, 383 U.S. 131 (1966) , the Court held protected a peaceful, silent stand-in in a segregated public library. Speaking of speech and assembly, Justice Fortas said for the Court: “As this Court has repeatedly stated, these 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 reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities.” Id. at 141–42 . See also Garner v. Louisiana, 368 U.S. 157, 185, 201 (1961) (Justice Harlan concurring). On a different footing is expressive conduct in a place where such conduct is prohibited for reasons other than suppressing speech. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service restriction on overnight sleeping as applied to demonstrators wishing to call attention to the plight of the homeless).

Justice Jackson wrote: “There is no doubt that, in connection with the pledge, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind.” 7 Footnote
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) . When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process. Thus, although the Court has had few opportunities to formulate First Amendment standards in this area, in upholding a congressional prohibition on draft-card burnings, it has stated the generally applicable rule. “[A] government regulation is sufficiently justified if it is within the constitutional power of Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that government interest.” 8 Footnote
United States v. O’Brien, 391 U.S. 367, 377 (1968) . The Court has suggested that this standard is virtually identical to that applied to time, place, or manner restrictions on expression.9 Footnote
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 & n.8 (1984) .

A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. These cases were decided by the Court in a manner that indicated an effort to begin to resolve the standards of First Amendment protection of “symbolic conduct.” In Smith v. Goguen ,12 Footnote
415 U.S. 566 (1974) . a statute punishing anyone who “publicly . . . treats contemptuously the flag of the United States” was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard “so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.” 13 Footnote
415 U.S. at 578 .

The First Amendment was the basis for reversal in Spence v. Washington ,14 Footnote
418 U.S. 405 (1974) . which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed; Spence had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The nature of the act was that it was intended to express an idea and it did so without damaging the flag. The Court assumed that the state had a valid interest in preserving the flag as a national symbol, but left unclear whether that interest extended beyond protecting the physical integrity of the flag.15 Footnote
418 U.S. at 408–11, 412–13 . Subsequently, the Court vacated, over the dissents of Chief Justice Burger and Justices White, Blackmun, and Rehnquist, two convictions for burning flags and sent them back for reconsideration in the light of Goguen and Spence . Sutherland v. Illinois , 418 U.S. 907 (1974) ; Farrell v. Iowa , 418 U.S. 907 (1974) . The Court, however, dismissed, “for want of a substantial federal question,” an appeal from a flag desecration conviction of one who, with no apparent intent to communicate but in the course of “horseplay,” blew his nose on a flag, simulated masturbation on it, and finally burned it. Van Slyke v. Texas , 418 U.S. 907 (1974) .

Immediately following Johnson , Congress enacted a new flag protection statute providing punishment for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.” 19 Footnote
The Flag Protection Act of 1989, Pub. L. No. 101-131 (1989). The law was designed to be content-neutral and to protect the “physical integrity” of the flag.20 Footnote
See H.R. Rep. No. 231 , 101st Cong., 1st Sess. 8 (1989) ( “The purpose of the bill is to protect the physical integrity of American flags in all circumstances, regardless of the motive or political message of any flag burner” ). Nonetheless, in overturning convictions of flag burners, the Court found that the law suffered from “the same fundamental flaw” as the Texas law in Johnson . The government’s underlying interest, characterized by the Court as resting upon “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals,” 21 Footnote
United States v. Eichman , 496 U.S. at 316 . still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court “a focus on those acts likely to damage the flag’s symbolic value.” 22 Footnote
496 U.S. at 317 . As in Johnson , such a law could not withstand “most exacting scrutiny” analysis.

The Court’s ruling in Eichman rekindled congressional efforts, postponed with enactment of the Flag Protection Act, to amend the Constitution to authorize flag desecration legislation at the federal and state levels. In both the House and the Senate these measures failed to receive the necessary two-thirds vote.23 Footnote
In the 101st Congress, the House defeated H.J. Res. 350 by vote of 254 in favor to 177 against ( 136 Cong. Rec. H4086 (daily ed. June 21, 1990) , and the Senate defeated S.J. Res. 332 by vote of 58 in favor to 42 against ( 136 Cong. Rec. S8737 (daily ed. June 26, 1990) . In every Congress since then (though the 111th in 2009), constitutional amendments to allow Congress or the states to prohibit flag desecration have been proposed. In each Congress from the 104th through the 109th (1995-2006), the House passed such a proposal, but the Senate either rejected it or did not vote on it.

Public Issue Picketing and Parading

The early cases held that picketing and parading were forms of expression entitled to some First Amendment protection.24 Footnote
Hague v. CIO, 307 U.S. 496 (1939) ; Cox v. New Hampshire, 312 U.S. 569 (1941) ; Kunz v. New York, 340 U.S. 290 (1951) ; Niemotko v. Maryland, 340 U.S. 268 (1951) . Those early cases did not, however, explicate the difference in application of First Amendment principles that the difference between mere expression and speech-plus would entail. Many of these cases concerned disruptions or feared disruptions of the public peace occasioned by the expressive activity and the ramifications of this on otherwise protected activity.25 Footnote
Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ; Terminiello v. City of Chicago, 337 U.S. 1 (1949) ; Feiner v. New York, 340 U.S. 315 (1951) . A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.26 Footnote
See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ; National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) ; Carroll v. President & Commr's of Princess Anne, 393 U.S. 175 (1968) . In one case, however, the Court applied the rules developed with regard to labor picketing to uphold an injunction against a group picketing a grocery store to compel the chain to adopt a quota-hiring system for black employees. The Supreme Court affirmed the state court's ruling that picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.27 Footnote
Hughes v. Superior Court, 339 U.S. 460 (1950) . This ruling, allowing content-based restriction, seems inconsistent with NAACP v. Claiborne Hardware , discussed under this topic, infra.

A series of civil rights picketing and parading cases led the Court to formulate standards much like those it has established in the labor field, but more protective of expressive activity. The process began with Edwards v. South Carolina ,28 Footnote
372 U.S. 229 (1963) . in which the Court reversed a breach of the peace conviction of several black protesters for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that demonstrators could be convicted simply because their presence “disturbed” people. Describing the demonstration upon the grounds of the legislative building in South Carolina’s capital, Justice Stewart observed that “[t]he circumstances in this case reflect an exercise of these basic [ First Amendment] constitutional rights in their most pristine and classic form.” 29 Footnote
372 U.S. at 235 . See also Fields v. South Carolina, 375 U.S. 44 (1963) ; Henry v. City of Rock Hill, 376 U.S. 776 (1964) . In subsequent cases, the Court observed: “We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as those amendments afford to those who communicate ideas by pure speech.” 30 Footnote
Cox v. Louisiana, 379 U.S. 536, 555 (1965) . “The conduct which is the subject to this statute—picketing and parading—is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.” 31 Footnote
379 U.S. at 563 .

The Court must determine, of course, whether the regulation is aimed primarily at conduct, as is the case with time, place, and manner regulations, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions imposed for breach of the peace and similar offenses, when, in the Court’s view, disturbance had resulted from opposition to the messages being uttered by demonstrators.32 Footnote
Edwards v. South Carolina, 372 U.S. 229 (1963) ; Cox v. Louisiana, 379 U.S. 536 (1965) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Bachellar v. Maryland, 397 U.S. 564 (1970) . See also Collin v. Smith , 447 F. Supp. 676 (N.D. Ill.) , aff’d, 578 F.2d 1197 (7th Cir.) , stay denied, 436 U.S. 953 , cert. denied, 439 U.S. 916 (1978) . Subsequently, however, the Court upheld a ban on residential picketing in Frisby v. Shultz ,33 Footnote
487 U.S. 474 (1988) . finding that the city ordinance was narrowly tailored to serve the “significant” governmental interest in protecting residential privacy. As interpreted, the ordinance banned only picketing that targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.34 Footnote
An earlier case involving residential picketing had been resolved on equal protection rather than First Amendment grounds, the ordinance at issue making an exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980) .

In 1982, the Justices confronted a case, that, like Hughes v. Superior Court ,35 Footnote
339 U.S. 460 (1950) . involved a state court injunction on picketing, although this one also involved a damage award. NAACP v. Claiborne Hardware Co. 36 Footnote
458 U.S. 886 (1982) . may join in terms of importance such cases as New York Times Co. v. Sullivan 37 Footnote
376 U.S. 254 (1964) . in requiring the states to observe enhanced constitutional standards before they may impose liability upon persons for engaging in expressive conduct that implicates the First Amendment. The case arose in the context of a protest against racial conditions by black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring of black policemen, hiring of more black employees by local stores, and ending of verbal abuse by police, the local NAACP chapter unanimously voted to boycott the area’s white merchants. The boycott was carried out through speeches and nonviolent picketing and solicitation of others to cease doing business with the merchants. Individuals were designated to watch stores and identify black people patronizing the stores; their names were then announced at meetings and published. Persuasion of others included social pressures and threats of social ostracism. Acts of violence did occur from time to time, directed in the main at black people who did not observe the boycott.

The state Supreme Court imposed joint and several liability upon leaders and participants in the boycott, and upon the NAACP, for all of the merchants’ lost earnings during a seven-year period on the basis of the common law tort of malicious interference with the merchants’ business, holding that the existence of acts of physical force and violence and the use of force, violence, and threats to achieve the ends of the boycott deprived it of any First Amendment protection.

Reversing, the Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage others to join the boycott, were protected activities, and association for those purposes was also protected.38 Footnote
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–08 (1982) . That some members of the group might have engaged in violence or might have advocated violence did not result in loss of protection for association, absent a showing that those associating had joined with intent to further the unprotected activities.39 Footnote
458 U.S. at 908 . Nor was protection to be denied because nonparticipants had been urged to join by speech, by picketing, by identification, by threats of social ostracism, and by other expressive acts: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” 40 Footnote
458 U.S. at 910 . The Court cited Thomas v. Collins, 323 U.S. 516, 537 (1945) , a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) , a public issues picketing case, which had also relied on the labor cases. Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618–19 (1980) (Justice Stevens concurring) (labor picketing that coerces or “signals” others to engage in activity that violates valid labor policy, rather than attempting to engage reason, prohibitable). To the contention that liability could be imposed on “store watchers” and on a group known as “Black Hats” who also patrolled stores and identified black patronizers of the businesses, the Court did not advert to the “signal” theory. “There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.” 458 U.S. at 925 . The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but these consequences did not justify suppression of the boycott. Government may certainly regulate certain economic activities having an incidental effect upon speech (e.g., labor picketing or business conspiracies to restrain competition),41 Footnote
See, e.g., FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990) (upholding application of per se antitrust liability to trial lawyers association’s boycott designed to force higher fees for representation of indigent defendants by court-appointed counsel). but that power of government does not extend to suppression of picketing and other boycott activities involving, as this case did, speech upon matters of public affairs with the intent of affecting governmental action and motivating private actions to achieve racial equality.42 Footnote
In evaluating the permissibility of government regulation in this context that has an incidental effect on expression, the Court applied the standards of United States v. O’Brien , which permits a regulation “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restiction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 458 U.S. at 912, n.47 , quoting O’Brien, 391 U.S. 367, 376–77 (1968) (footnotes omitted).

The critical issue, however, had been the occurrence of violent acts and the lower court’s conclusion that they deprived otherwise protected conduct of protection. “The First Amendment does not protect violence . . . . No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, ‘precision of regulation’ is demanded . . . . Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages.” 43 Footnote
458 U.S. at 916–17 . In other words, the states may impose damages for the consequences of violent conduct, but they may not award compensation for the consequences of nonviolent, protected activity.44 Footnote
458 U.S. at 917–18 . Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, and could not include losses suffered as a result of all the other activities comprising the boycott. And only those nonviolent persons who associated with others with an awareness of violence and an intent to further it could similarly be held liable.45 Footnote
458 U.S. at 918–29 , relying on a series of labor cases and on the subversive activities association cases, e.g., Scales v. United States, 367 U.S. 203 (1961) , and Noto v. United States, 367 U.S. 290 (1961) . Because most of the acts of violence had occurred early on, in 1966, there was no way constitutionally that much if any of the later losses of the merchants could be recovered in damages.46 Footnote
458 U.S. at 920–26 . The Court distinguished Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941) , in which an injunction had been sustained against both violent and nonviolent activity, not on the basis of special rules governing labor picketing, but because the violence had been “pervasive.” 458 U.S. at 923 . As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because any violent acts that occurred were some time after the speeches, and a “clear and present danger” analysis of the speeches would not find them punishable.47 Footnote
458 U.S. at 926–29 . The field secretary’s “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969) .” The award against the NAACP fell with the denial of damages against its local head, and, in any event, the protected right of association required a rule that would immunize the NAACP without a finding that it “authorized—either actually or apparently—or ratified unlawful conduct.” 48 Footnote
458 U.S. at 931 . In ordinary business cases, the rule of liability of an entity for actions of its agents is broader. E.g., American Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556 (1982) . The different rule in cases of organizations formed to achieve political purposes rather than economic goals appears to require substantial changes in the law of agency with respect to such entities. Note, 96 Harv. L. Rev. 171, 174–76 (1982) .

Claiborne Hardware is, thus, a seminal decision in the Court’s effort to formulate standards governing state power to regulate or to restrict expressive conduct that comes close to or crosses over the line to encompass some violent activities; it requires great specificity and the drawing of fine discriminations by government so as to reach only that portion of the activity that does involve violence or the threat of violence, and forecloses the kind of “public policy” limit on demonstrations that was approved in Hughes v. Superior Court .49 Footnote
“Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”

More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women’s Health Center ,50 Footnote
512 U.S. 753 (1994) . the Court refined principles governing issuance of “content-neutral” injunctions that restrict expressive activity.51 Footnote
The Court rejected the argument that the injunction was necessarily content-based or viewpoint-based because it applied only to anti-abortion protesters. “An injunction by its very nature applies only to a particular group (or individuals) . . . . It does so, however, because of the group’s past actions in the context of a specific dispute between real parties.” There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. 512 U.S. at 762 . The appropriate test, the Court stated, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest.” 52 Footnote
512 U.S. at 765 . Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) “is not sufficiently rigorous,” the Court explained, “because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals.” 53 Footnote
512 U.S. at 765 . Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within 36 feet of an abortion clinic. Similarly upheld were noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. Inclusion of private property within the 36-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on “images observable” by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, the restriction covering a much larger zone than an earlier residential picketing ban that the Court had upheld.54 Footnote
Referring to Frisby v. Schultz, 487 U.S. 474 (1988) .

In Schenck v. Pro-Choice Network of Western New York ,55 Footnote
519 U.S. 357 (1997) . the Court applied Madsen to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities” what the Court called “fixed buffer zones.” 56 Footnote
519 U.S. at 366 n.3 . It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities” what it called “floating buffer zones.” 57 Footnote
519 U.S. at 366 n.3 . The Court cited “public safety and order” 58 Footnote
519 U.S. at 376 . in upholding the fixed buffer zones, but it found that the floating buffer zones “burden more speech than is necessary to serve the relevant governmental interests” 59 Footnote
519 U.S. at 377 . because they make it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.” 60 Footnote
519 U.S. at 378 . The Court also upheld a “provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.” 61 Footnote
519 U.S. at 367 .

In Hill v. Colorado ,62 Footnote
530 U.S. 703 (2000) . the Court upheld a Colorado statute that made it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” 63 Footnote
530 U.S. at 707 . This decision is notable because it upheld a statute, and not, as in Madsen and Schenck , merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners . . . .” 64 Footnote
530 U.S. at 714 . The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did not apply to all speech, the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling is not “problematic.” 65 Footnote
530 U.S. at 722 . The law was narrowly tailored to achieve the state’s interests. The eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.

In McCullen v. Coakley , the Court retained a content-neutral analysis similar to that in Hill , but nonetheless struck down a statutory 35-foot buffer zone at entrances and driveways of abortion facilities.66 Footnote
573 U.S. ___, No. 12-1168, slip op. at 11–18 (2014) . The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.67 Footnote
Id. at 19–23 . The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public fora for speech, nor significantly burden the ability of those wishing to provide “sidewalk counseling” to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.68 Footnote
Id. at 23–29 .

Different types of issues were presented by Hurley v. Irish-American Gay Group ,69 Footnote
515 U.S. 557 (1995) . in which the Court held that a state’s public accommodations law could not be applied to compel private organizers of a St. Patrick’s Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers’ message contravened the “fundamental rule . . . that a speaker has the autonomy to choose the content of his own message.” 70 Footnote
515 U.S. at 573 .

Leafleting, Handbilling, and the Like

In Lovell v. City of Griffin ,71 Footnote
303 U.S. 444 (1938) . the Court struck down a permit system applying to the distribution of circulars, handbills, or literature of any kind. The First Amendment, the Court said, “necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.” 72 Footnote
303 U.S. at 452 . State courts, responding to what appeared to be a hint in Lovell that prevention of littering and other interests might be sufficient to sustain a flat ban on literature distribution,73 Footnote
303 U.S. at 451 . upheld total prohibitions and were reversed. “Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions . . . . We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.” 74 Footnote
Schneider v. Town of Irvington, 308 U.S. 147, 161, 162 (1939) . The Court noted that the right to distribute leaflets was subject to certain obvious regulations, id. at 160 , and called for a balancing, with the weight inclined to the First Amendment rights. See also Jamison v. Texas, 318 U.S. 413 (1943) . In Talley v. California ,75 Footnote
362 U.S. 60 (1960) . the Court struck down an ordinance that banned all handbills that did not carry the name and address of the author, printer, and sponsor; conviction for violating the ordinance was set aside on behalf of one distributing leaflets urging boycotts against certain merchants because of their employment discrimination. The basis of the decision is not readily ascertainable. On the one hand, the Court celebrated anonymity. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all . . . . [I]dentification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” 76 Footnote
362 U.S. at 64, 65 . On the other hand, responding to the city’s defense that the ordinance was aimed at providing a means to identify those responsible for fraud, false advertising, and the like, the Court noted that “the ordinance is in no manner so limited . . . .Therefore we do not pass on the validity of an ordinance limited to these or any other supposed evils.” 77 Footnote
362 U.S. at 64 . In Zwickler v. Koota, 389 U.S. 241 (1967) , the Court directed a lower court to consider the constitutionality of a statute which made it a criminal offense to publish or distribute election literature without identification of the name and address of the printer and of the persons sponsoring the literature. The lower court voided the law, but changed circumstances on a new appeal caused the Court to dismiss. Golden v. Zwickler, 394 U.S. 103 (1969) .

Talley ’s anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm’n ,78 Footnote
514 U.S. 334 (1995) . invalidating Ohio’s prohibition on the distribution of anonymous campaign literature. There is a “respected tradition of anonymity in the advocacy of political causes,” the Court noted, and neither of the interests asserted by Ohio justified the limitation. The state’s interest in informing the electorate was “plainly insufficient,” and, although the more weighty interest in preventing fraud in the electoral process may be accomplished by a direct prohibition, it may not be accomplished indirectly by an indiscriminate ban on a whole category of speech. Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.79 Footnote
In Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) , the Court struck down a Colorado statute requiring initiative-petition circulators to wear identification badges. It found that “the restraint on speech in this case is more severe than was the restraint in McIntyre ” because “[p]etition circulation is a less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. . . . [T]he badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest.” Id. at 199 . In Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150, 166 (2002) , concern for the right to anonymity was one reason that the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit.

The handbilling cases were distinguished in City Council v. Taxpayers for Vincent ,80 Footnote
466 U.S. 789 (1984) . in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although a city’s concern over visual blight could be addressed by an anti-littering ordinance not restricting the expressive activity of distributing handbills, in the case of utility pole signs “it is the medium of expression itself” that creates the visual blight. Hence, the city’s prohibition, unlike a prohibition on distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city’s legitimate purpose.81 Footnote
Justice Brennan argued in dissent that adequate alternative forms of communication were not readily available because handbilling or other person-to-person methods would be substantially more expensive, and that the regulation for the sake of aesthetics was not adequately justified. Ten years later, however, the Court unanimously invalidated a town’s broad ban on residential signs that permitted only residential identification signs, “for sale” signs, and signs warning of safety hazards.82 Footnote
City of Ladue v. Gilleo, 512 U.S. 43 (1994) . Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed “a venerable means of communication that is unique and important,” and that is “an unusually cheap form of communication” without viable alternatives for many residents.83 Footnote
512 U.S. at 54, 57 . The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a “uniquely valuable or important mode of communication,” and as not impairing citizens’ ability to communicate.84 Footnote
512 U.S. at 54 . The city’s legitimate interest in reducing visual clutter could be addressed by “more temperate” measures, the Court suggested. Id. at 58 .

Footnotes 1 E.g., Saia v. New York, 334 U.S. 558 (1948) ; Kovacs v. Cooper, 336 U.S. 77 (1949) . 2 E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939) . 3 Cf. Cohen v. California, 403 U.S. 15 (1971) . 4 Stromberg v. California, 283 U.S. 359 (1931) . 5 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) . 6 In Brown v. Louisiana, 383 U.S. 131 (1966) , the Court held protected a peaceful, silent stand-in in a segregated public library. Speaking of speech and assembly, Justice Fortas said for the Court: “As this Court has repeatedly stated, these 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 reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities.” Id. at 141–42 . See also Garner v. Louisiana, 368 U.S. 157, 185, 201 (1961) (Justice Harlan concurring). On a different footing is expressive conduct in a place where such conduct is prohibited for reasons other than suppressing speech. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service restriction on overnight sleeping as applied to demonstrators wishing to call attention to the plight of the homeless). 7 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) . 8 United States v. O’Brien, 391 U.S. 367, 377 (1968) . 9 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 & n.8 (1984) . 10 394 U.S. 576 (1969) . 11 394 U.S. at 591–93 . Four dissenters concluded that the First Amendment did not preclude a flat proscription of flag burning or flag desecration for expressive purposes. Id. at 594 (Chief Justice Warren), 609 (Justice Black), 610 (Justice White), and 615 (Justice Fortas). In Radich v. New York, 401 U.S. 531 (1971) , aff’g, 26 N.Y.2d 114 , 257 N.E.2d 30 (1970) , an equally divided Court, Justice Douglas not participating, sustained a flag desecration conviction of one who displayed sculptures in a gallery, using the flag in apparently sexually bizarre ways to register a social protest. Defendant subsequently obtained his release on habeas corpus, United States ex rel. Radich v. Criminal Court, 459 F.2d 745 (2d Cir. 1972) , cert. denied, 409 U.S. 115 (1973) . 12 415 U.S. 566 (1974) . 13 415 U.S. at 578 . 14 418 U.S. 405 (1974) . 15 418 U.S. at 408–11, 412–13 . Subsequently, the Court vacated, over the dissents of Chief Justice Burger and Justices White, Blackmun, and Rehnquist, two convictions for burning flags and sent them back for reconsideration in the light of Goguen and Spence . Sutherland v. Illinois , 418 U.S. 907 (1974) ; Farrell v. Iowa , 418 U.S. 907 (1974) . The Court, however, dismissed, “for want of a substantial federal question,” an appeal from a flag desecration conviction of one who, with no apparent intent to communicate but in the course of “horseplay,” blew his nose on a flag, simulated masturbation on it, and finally burned it. Van Slyke v. Texas , 418 U.S. 907 (1974) . 16 491 U.S. 397 (1989) . 17 496 U.S. 310 (1990) . 18 In each case Justice Brennan’s opinion for the Court was joined by Justices Marshall, Blackmun, Scalia, and Kennedy, and in each case Chief Justice Rehnquist and Justices White, Stevens, and O’Connor dissented. In Johnson the Chief Justice’s dissent was joined by Justices White and O’Connor, and Justice Stevens dissented separately. In Eichman Justice Stevens wrote the only dissenting opinion, to which the other dissenters subscribed. 19 The Flag Protection Act of 1989, Pub. L. No. 101-131 (1989). 20 See H.R. Rep. No. 231 , 101st Cong., 1st Sess. 8 (1989) ( “The purpose of the bill is to protect the physical integrity of American flags in all circumstances, regardless of the motive or political message of any flag burner” ). 21 United States v. Eichman , 496 U.S. at 316 . 22 496 U.S. at 317 . 23 In the 101st Congress, the House defeated H.J. Res. 350 by vote of 254 in favor to 177 against ( 136 Cong. Rec. H4086 (daily ed. June 21, 1990) , and the Senate defeated S.J. Res. 332 by vote of 58 in favor to 42 against ( 136 Cong. Rec. S8737 (daily ed. June 26, 1990) . In every Congress since then (though the 111th in 2009), constitutional amendments to allow Congress or the states to prohibit flag desecration have been proposed. In each Congress from the 104th through the 109th (1995-2006), the House passed such a proposal, but the Senate either rejected it or did not vote on it. 24 Hague v. CIO, 307 U.S. 496 (1939) ; Cox v. New Hampshire, 312 U.S. 569 (1941) ; Kunz v. New York, 340 U.S. 290 (1951) ; Niemotko v. Maryland, 340 U.S. 268 (1951) . 25 Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ; Terminiello v. City of Chicago, 337 U.S. 1 (1949) ; Feiner v. New York, 340 U.S. 315 (1951) . 26 See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ; National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) ; Carroll v. President & Commr's of Princess Anne, 393 U.S. 175 (1968) . 27 Hughes v. Superior Court, 339 U.S. 460 (1950) . This ruling, allowing content-based restriction, seems inconsistent with NAACP v. Claiborne Hardware , discussed under this topic, infra. 28 372 U.S. 229 (1963) . 29 372 U.S. at 235 . See also Fields v. South Carolina, 375 U.S. 44 (1963) ; Henry v. City of Rock Hill, 376 U.S. 776 (1964) . 30 Cox v. Louisiana, 379 U.S. 536, 555 (1965) . 31 379 U.S. at 563 . 32 Edwards v. South Carolina, 372 U.S. 229 (1963) ; Cox v. Louisiana, 379 U.S. 536 (1965) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Bachellar v. Maryland, 397 U.S. 564 (1970) . See also Collin v. Smith , 447 F. Supp. 676 (N.D. Ill.) , aff’d, 578 F.2d 1197 (7th Cir.) , stay denied, 436 U.S. 953 , cert. denied, 439 U.S. 916 (1978) . 33 487 U.S. 474 (1988) . 34 An earlier case involving residential picketing had been resolved on equal protection rather than First Amendment grounds, the ordinance at issue making an exception for labor picketing. Carey v. Brown, 447 U.S. 455 (1980) . 35 339 U.S. 460 (1950) . 36 458 U.S. 886 (1982) . 37 376 U.S. 254 (1964) . 38 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–08 (1982) . 39 458 U.S. at 908 . 40 458 U.S. at 910 . The Court cited Thomas v. Collins, 323 U.S. 516, 537 (1945) , a labor picketing case, and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) , a public issues picketing case, which had also relied on the labor cases. Compare NLRB v. Retail Store Employees, 447 U.S. 607, 618–19 (1980) (Justice Stevens concurring) (labor picketing that coerces or “signals” others to engage in activity that violates valid labor policy, rather than attempting to engage reason, prohibitable). To the contention that liability could be imposed on “store watchers” and on a group known as “Black Hats” who also patrolled stores and identified black patronizers of the businesses, the Court did not advert to the “signal” theory. “There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.” 458 U.S. at 925 . 41 See, e.g., FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990) (upholding application of per se antitrust liability to trial lawyers association’s boycott designed to force higher fees for representation of indigent defendants by court-appointed counsel). 42 In evaluating the permissibility of government regulation in this context that has an incidental effect on expression, the Court applied the standards of United States v. O’Brien , which permits a regulation “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restiction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 458 U.S. at 912, n.47 , quoting O’Brien, 391 U.S. 367, 376–77 (1968) (footnotes omitted). 43 458 U.S. at 916–17 . 44 458 U.S. at 917–18 . 45 458 U.S. at 918–29 , relying on a series of labor cases and on the subversive activities association cases, e.g., Scales v. United States, 367 U.S. 203 (1961) , and Noto v. United States, 367 U.S. 290 (1961) . 46 458 U.S. at 920–26 . The Court distinguished Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941) , in which an injunction had been sustained against both violent and nonviolent activity, not on the basis of special rules governing labor picketing, but because the violence had been “pervasive.” 458 U.S. at 923 . 47 458 U.S. at 926–29 . The field secretary’s “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969) .” 48 458 U.S. at 931 . In ordinary business cases, the rule of liability of an entity for actions of its agents is broader. E.g., American Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556 (1982) . The different rule in cases of organizations formed to achieve political purposes rather than economic goals appears to require substantial changes in the law of agency with respect to such entities. Note, 96 Harv. L. Rev. 171, 174–76 (1982) . 49 “Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. And yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”

“[P]etitioners’ ultimate objectives were unquestionably legitimate. The charge of illegality . . . derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection.”

“The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. [The burden can be met only] by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully identify the impact of such unlawful conduct, and that recognizes the importance of avoiding the imposition of punishment for constitutionally protected activity. . . . A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees.” 458 U.S. at 933–34 .

50 512 U.S. 753 (1994) . 51 The Court rejected the argument that the injunction was necessarily content-based or viewpoint-based because it applied only to anti-abortion protesters. “An injunction by its very nature applies only to a particular group (or individuals) . . . . It does so, however, because of the group’s past actions in the context of a specific dispute between real parties.” There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. 512 U.S. at 762 . 52 512 U.S. at 765 . 53 512 U.S. at 765 . 54 Referring to Frisby v. Schultz, 487 U.S. 474 (1988) . 55 519 U.S. 357 (1997) . 56 519 U.S. at 366 n.3 . 57 519 U.S. at 366 n.3 . 58 519 U.S. at 376 . 59 519 U.S. at 377 . 60 519 U.S. at 378 . 61 519 U.S. at 367 . 62 530 U.S. 703 (2000) . 63 530 U.S. at 707 . 64 530 U.S. at 714 . 65 530 U.S. at 722 . 66 573 U.S. ___, No. 12-1168, slip op. at 11–18 (2014) . 67 Id. at 19–23 . 68 Id. at 23–29 . 69 515 U.S. 557 (1995) . 70 515 U.S. at 573 . 71 303 U.S. 444 (1938) . 72 303 U.S. at 452 . 73 303 U.S. at 451 . 74 Schneider v. Town of Irvington, 308 U.S. 147, 161, 162 (1939) . The Court noted that the right to distribute leaflets was subject to certain obvious regulations, id. at 160 , and called for a balancing, with the weight inclined to the First Amendment rights. See also Jamison v. Texas, 318 U.S. 413 (1943) . 75 362 U.S. 60 (1960) . 76 362 U.S. at 64, 65 . 77 362 U.S. at 64 . In Zwickler v. Koota, 389 U.S. 241 (1967) , the Court directed a lower court to consider the constitutionality of a statute which made it a criminal offense to publish or distribute election literature without identification of the name and address of the printer and of the persons sponsoring the literature. The lower court voided the law, but changed circumstances on a new appeal caused the Court to dismiss. Golden v. Zwickler, 394 U.S. 103 (1969) . 78 514 U.S. 334 (1995) . 79 In Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) , the Court struck down a Colorado statute requiring initiative-petition circulators to wear identification badges. It found that “the restraint on speech in this case is more severe than was the restraint in McIntyre ” because “[p]etition circulation is a less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. . . . [T]he badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest.” Id. at 199 . In Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150, 166 (2002) , concern for the right to anonymity was one reason that the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit. 80 466 U.S. 789 (1984) . 81 Justice Brennan argued in dissent that adequate alternative forms of communication were not readily available because handbilling or other person-to-person methods would be substantially more expensive, and that the regulation for the sake of aesthetics was not adequately justified. 82 City of Ladue v. Gilleo, 512 U.S. 43 (1994) . 83 512 U.S. at 54, 57 . 84 512 U.S. at 54 . The city’s legitimate interest in reducing visual clutter could be addressed by “more temperate” measures, the Court suggested. Id. at 58 .