Symbolic speech and social meaning

The doctrine of symbolic speech holds that some conduct, for example flag burning, may be sufficiently communicative to warrant First Amendment protection. What conduct constitutes symbolic speech, however, has been a vexing question. Spence v. Washington established a test to guide this inquiry, requiring courts to examine the actor's intent, the likelihood of audience understanding of the message being communicated, and the context of the activity. The traditional conception of Spence has ostensibly focused on the actual intent of the actor and on the case-specific facts at issue. This Note argues for a new understanding of symbolic-speech jurisprudence It contends that the actual intent of the actor is not an independently relevant factor in the Spence analysis and, to the extent that intent is relevant to the inquiry, it is imputed intent that matters. Furthermore, this Note argues that courts tend not to address the facts in a symbolic-speech case at the case-specific level, but rather approach the issue at a much broader level of generality. This broad inquiry entails grouping the conduct at issue together with other similar conduct and investigating the traditional social meaning of those categories of conduct. Viewed at this level of generality, the second and third Spence factors of audience understanding and context are Largely conflated. Finally, this Note investigates the extent to which this reconceptualization of the symbolic-speech analysis can serve as a predictive model for future cases.