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February 25, 2016 Practice Points

Thinking about Speaking and Doing in the Ninth Circuit: United States v. Swisher

A recent decision reminds us of the analysis that courts—and litigants—must undertake to label an activity either expressive conduct or speech.

By Aaron P. Brecher – February 25, 2016

Whether an activity is characterized as speech or as expressive conduct can often determine the outcome in a First Amendment case. Expressive conduct is generally entitled to less protection than pure speech or symbolic speech akin to pure speech. A recent decision by an en banc panel of the Ninth Circuit helpfully reminds readers of the analysis that courts—and litigants—must undertake to label an activity either expressive conduct or speech. In United States v. Swisher, No. 11-35796 (9th Cir. Jan. 11, 2016), the court explained that the test centers around whether the speaker intends to convey a message with the activity and whether others would readily understand the activity as one communicating a message. But also, critically, the line between speech and expressive conduct depends a great deal on the nature of the government’s regulation.

Swisher ruled unconstitutional a now-repealed provision of the Stolen Valor Act that criminalized wearing military medals that one did not earn (in 2012, the Supreme Court invalidated other provisions of the act that criminalized falsely saying that one has earned military medals).

As the Supreme Court explained in Texas v. Johnson, 491 U.S. 397 (1989), government regulations aimed at conduct are subject to the lesser scrutiny applicable to expressive conduct generally. If, however, the regulation is transparently aimed at suppressing a message, a more demanding standard is used. Applying these principles, the Ninth Circuit decided that Elven Swisher—who wore unearned medals including the Silver Star and the Purple Heart—could not be punished under the challenged statute. Wearing unearned medals was meant to convey a message that would be understood as such by the public and the restriction could not be justified without reference to the content of the false message of bravery that wearing the medals sent. The prohibition on wearing military medals made sense only as a restriction on the lie that Swisher had been decorated, and therefore was not merely expressive conduct, but a content-based regulation of symbolic speech subject to the same protection as other false speech.

These aren’t new principles. But the public and litigators often skip past them when making claims about the speech implications of controversial activity. Two examples are First Amendment protection for flag burning and for campaign expenditures—prominent bêtes noires of the right and the left, respectively. Setting a piece of cloth on fire is not speech, some argue. But when a state imposes criminal penalties for “desecrat[ing] a venerated object” in a way that will cause offense, as Texas did in Johnson, it takes aim squarely at the message a flag-burner is trying to send. If the defendant had taken the flag from a government building and been charged with theft, or destruction of government property, or with a neutral drought measure barring outdoor fires, the First Amendment analysis would have been quite different. Similarly, cutting a check is not speech. Yet when Congress prohibited the use of a corporation or labor union’s general treasury funds to pay for “electioneering communications,” the Supreme Court analyzed the restriction as one on political speech rather than on money. See Citizens United v. FEC, 558 U.S. 310 (2010).

The distinction between conduct and speech has no significance in a vacuum: the statute or regulation being challenged and the legislative purpose in regulating are central to the analysis. The First Amendment admonishes Congress to “make no law . . . abridging the freedom of speech.” When litigating whether an activity should receive the greater protections generally associated with speech or the less robust safeguards for expressive conduct, one should remember to analyze not just the activity itself, but whether the government’s regulation seeks to restrict activity based on the message it sends.

Keywords: litigation, civil rights, First Amendment, free speech, Ninth Circuit

— Aaron P. Brecher, Lane Powell PC, Seattle, WA

All opinions are the author's, and not necessarily those of Lane Powell PC or any of its clients.

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