Charges tied to expressive conduct — flag burning, sit-ins, armbands, marches, symbolic displays — usually fail when the government is really punishing the message, and usually stick when a neutral law reaches the physical act regardless of what it communicates. The First Amendment protects symbolic expression, but that protection is not absolute, and whether a prosecution survives depends almost entirely on what the law was aimed at and what category the expression falls into.
What Counts as Expressive Conduct in the First Place
Not every action carries constitutional weight. Courts use a two-part test from Spence v. Washington (1974), refined in Texas v. Johnson (1989): the person must intend to convey a particular message, and onlookers must be likely to understand it.1First Amendment Encyclopedia. Expressive Conduct Conduct that is “inherently expressive” clears the bar. Doing something and later explaining what you meant does not, a distinction the Supreme Court made explicit in Rumsfeld v. Forum for Academic and Institutional Rights (2006).2Cornell Law Institute. Overview of Symbolic Speech
Activities the Court has treated as expressive conduct include picketing, marching, leafleting, displaying political symbols, sit-ins, wearing protest armbands, and flag desecration.2Cornell Law Institute. Overview of Symbolic Speech If what you did fits this category, the question becomes which standard a court will apply to the charge against you.
Which Standard Decides the Case
Everything turns on whether the law is aimed at the message or at something else.
When the Law Targets the Message
If the government is objecting to what your conduct communicates, courts apply strict scrutiny. The government must show a compelling interest and prove it used the least restrictive means available. Laws almost never survive this review. That is why Texas v. Johnson (1989) held flag burning protected in a 5–4 decision and why United States v. Eichman (1990) then struck down the federal Flag Protection Act: public offense at the message is not a reason the government can use to punish it.3FindLaw. What Is Symbolic Speech Under the First Amendment
When the Law Targets the Act, Not the Idea
If the law regulates the non-expressive part of conduct and only incidentally burdens expression, courts apply the four-part test from United States v. O’Brien (1968), which upheld a conviction for burning a draft card. The government must show that the regulation is within its constitutional power, furthers an important or substantial interest, is unrelated to suppressing expression, and restricts speech no more than necessary.4Justia. United States v. O’Brien, 391 U.S. 367
This standard mirrors what courts use for content-neutral time, place, and manner rules — noise limits, parade routes, littering ordinances — that apply regardless of what anyone is saying. It is why Clark v. Community for Creative Non-Violence (1984) upheld a National Park Service ban on overnight sleeping in parks even when protesters slept there to draw attention to homelessness: the rule was content-neutral, so the incidental burden on their message was permissible.2Cornell Law Institute. Overview of Symbolic Speech
The practical takeaway: a charge for what you said or symbolized rarely holds. A charge for how, where, or when you acted — under a law that would apply the same way to anyone — often does.
Categories of Expression the Government Can Still Punish
Some categories of expression sit outside First Amendment protection entirely and can be charged criminally or penalized civilly: defamation, fighting words, true threats, obscenity, child pornography, incitement to imminent lawless action, and fraud.3FindLaw. What Is Symbolic Speech Under the First Amendment If your conduct communicates a true threat or amounts to incitement, calling it expressive will not save it.
Federal law layers additional rules on top of these categories. The Freedom of Access to Clinic Entrances (FACE) Act criminalizes force, threats, or physical obstruction directed at people seeking or providing reproductive health services, but the statute explicitly does not apply to speech or expressive conduct protected by the First Amendment, and nonobstructive demonstrations remain legal.5Federal Bureau of Investigation. Federal Civil Rights Statutes The line the statute draws is the same line the cases draw: obstruction and force are chargeable, expression is not.
Disorderly Conduct and the Speech-Versus-Action Line
The most common charge that intersects with expressive conduct is disorderly conduct. States handle it differently, but the working rule is that offensive or provocative speech cannot be criminalized unless it qualifies as fighting words — language so inflammatory it tends to incite an immediate breach of the peace.
Massachusetts courts have limited the disorderly conduct statute so that it reaches language or expressive conduct only when the fighting-words threshold is met. Political protesters get additional protection: the state’s highest court held that their activity serves a “legitimate purpose” and cannot be prosecuted under the branch of the statute covering “hazardous or physically offensive conditions.”6Commonwealth of Massachusetts. Disorderly Conduct, G.L. c. 272, § 53 Minnesota has narrowed its statute the same way, restricting it to fighting words rather than general offensive speech.7North Star Criminal Defense. A Disorderly Conduct Charge From Words and Actions
Where these charges do stick is on the conduct alongside the speech. A Minnesota appeals court upheld a disorderly conduct conviction against a former mayor whose statements to police were themselves protected, because his physical actions — aggressively confronting officers and ignoring orders to step back — independently created an unsafe situation.7North Star Criminal Defense. A Disorderly Conduct Charge From Words and Actions Speech was not the basis of the conviction; the physical behavior was. That split is worth understanding if you are on the receiving end of a charge stemming from a protest or confrontation.
Where You Have the Strongest Ground to Stand
First Amendment protections are at their peak in “traditional public forums” — streets, sidewalks, and parks. Expression is also protected on other public property, including plazas outside government buildings, as long as it does not block access or interfere with the property’s intended use. You do not need a permit to march on sidewalks or streets when traffic is not obstructed, and permits cannot be denied because officials find the views being expressed controversial or unpopular.8ACLU. Protesters’ Rights
Police may issue dispersal orders only as a last resort when there is an immediate public safety threat. Those orders must be audible, must give people reasonable time to comply, and must identify a clear exit route.9NYCLU. Your Rights to Protesting in New York You have the right to photograph or record anything in plain view in a public space, including police activity. Officers cannot delete that footage or search a seized device’s contents without a warrant.8ACLU. Protesters’ Rights
Two federal statutes provide backstops if others try to shut down your expression through force. The Conspiracy Against Rights statute makes it a crime for two or more people to conspire to intimidate or threaten anyone exercising a constitutional right. The Federally Protected Activities statute bars force or threats used to interfere with participation in activities like voting, federal employment, or the use of public accommodations on the basis of race, color, religion, or national origin.5Federal Bureau of Investigation. Federal Civil Rights Statutes
If you are facing a charge tied to expressive activity, the first questions to work through with a lawyer are these: does the conduct meet the Spence test for expression, is the law being applied to you aimed at the message or at the physical act, and does the specific behavior charged fall into one of the unprotected categories or into ordinary conduct the state can regulate regardless of what you were saying. Those three questions decide most cases.