Silent Protests: When You Don’t Need Noise to Make Noise
The First Amendment protects free speech and assembly, allowing people to gather and protest without government interference. These protections also extend to silent protests — a form of organized activity used to express dissent or disapproval without speech or noise — as a form of symbolic speech or expressive conduct.
Silent protests demonstrate that there are many nonverbal ways to communicate a message. For example, people may use hand signals, wear a specific piece of clothing, or gather and march as a silent group. These forms of protest use creative ways to communicate a message and can be impactful, as they are often viewed by mass audiences.
In this article, we explore how courts view silent protests, restrictions around this form of assembly, and both historical and more recent examples.
Silent protests as symbolic speech or expressive conduct
The U.S. Supreme Court has typically referred to silent protests as a type of symbolic speech or expressive conduct, as opposed to “pure speech,” which involves written or verbal expression.
The court generally views symbolic speech and expressive conduct a bit differently than pure speech, though it’s likely still protected under the First Amendment. The Supreme Court applies a two-part test to determine whether symbolic speech or expressive conduct is expressive enough to receive protection:
- Did the speaker intend to convey a particularized message?
- Would the audience reasonably understand the speaker’s message?
If the conduct in question meets these criteria, it is likely protected speech.
This test is sometimes called the Spence Test, from the Supreme Court’s decision in Spence v. Washington (1974). In this case, Harold Omand Spence displayed an American flag outside his apartment upside-down, with a peace symbol attached to the flag. He was charged with a form of flag desecration. But the Supreme Court ruled in favor of Spence, reasoning that he had engaged in a form of silent political protest and determined this constitutes protected speech.
Restrictions on silent protests
Like all First Amendment freedoms, the right to protest, including silent protest, has limits. Government officials can restrict protests on public property to occur at specific times and locations if they are concerned about, for example, rush-hour traffic. This would be a legitimate time, place and manner restriction on speech or assembly.
Key to this, however, is that the government must treat different groups similarly. If the government allows one group to protest but denies another group, courts may consider this viewpoint discrimination, which would likely violate the First Amendment.
In 1984, the Supreme Court explained that time, place and manner restrictions on speech are valid if:
- They are content-neutral.
- They are narrowly tailored to serve a significant governmental interest.
- They leave open ample, alternative means of communicating.
The government also can limit protests that become too disruptive, though this may be less of an issue with silent protests, or that become violent.
Examples of silent protest
There have been many forms of silent protest in U.S. history.
1917 Silent Protest Parade
One of the most significant examples is the 1917 Silent Protest Parade in New York City. Time Magazine called it the “first march of the 20th century civil rights movement.” It was organized by the NAACP, with prominent civil rights leaders James Weldon Johnson and W.E.B. Du Bois leading the organizing efforts. They planned the parade to protest the “lawless treatment” of African Americans in the U.S., including violence and lynchings.
Nearly 10,000 people participated in the protest. There were beating drums but no speeches or verbal expression. It spurred similar silent protests in various American cities from 1917 throughout the 1920s.
1950s and 1960s sit-ins during the Civil Rights Movement
The sit-in movement, another form of silent protest, occurred regularly during the Civil Rights Movement of the 1950s and 1960s. During sit-ins, Black protestors would enter an establishment (often a restaurant) that practiced segregation and excluded African Americans. The protestors would quietly sit down at a lunch counter, for example, as an act of nonviolent civil disobedience. The police often would force the sit-in protestors to leave or sometimes arrest them and charge them with breach of the peace.
#OTD in 1960: Four Black freshmen from North Carolina A&T in Greensboro, N.C. went to the "whites-only" lunch counter at the F.W. Woolworth store and attempted to order coffee. They were denied service and were asked to leave, but they politely refused and remained peacefully… pic.twitter.com/4SrlpyFf98
— Freedom Forum (@1stForAll) February 1, 2024
The Supreme Court often overturned the convictions of those who engaged in these types of silent protests. In one case, Justice John Marshall Harlan II authored an opinion explaining that the act of conducting a sit-in protest was a form of nonverbal expression protected by the First Amendment (Garner v. Louisiana, 1961).
1965 black armband protest against the Vietnam War
Another famous form of silent protest occurred in the American public school system in the 1960s. A group of people met in Des Moines, Iowa, to discuss ways to protest U.S. involvement in Vietnam and the Vietnam War.
As part of that protest, seven students — including Mary Beth Tinker, her brother John Tinker and a third student, Christopher Eckhardt — wore black armbands to their schools. School officials reacted by suspending all seven students.
The two Tinker siblings and Eckhart challenged their suspensions in court, arguing that their act of silent protest was a form of free expression protected by the First Amendment. The Supreme Court famously ruled in favor of the students, explaining that the students’ act of wearing the armbands was “closely akin to pure speech” (Tinker v. Des Moines Independent Community School District, 1969). It also emphasized that the students’ act of wearing the black armbands was not disruptive and was entirely peaceful.
2004 anti-abortion student protests
A more recent example involves students engaging in annual anti-abortion silent protests, which began in 2004. Stand True, the organization that sponsors the protests, has encouraged students “to wear anti-abortion clothing, pass out information and wear tape across their mouths, symbolizing the lost speech of unborn children” — a form of a silent protest using symbolic gestures.
Some schools told the students their silent protests were “not age-appropriate” and/or “disruptive,” among other things.
Some of these students filed lawsuits against the schools, with different outcomes, including a settlement in one case and a court order affirming another student’s right to engage in the protest. An attorney for the students praised the decisions for upholding the Tinker standard that says students can only be punished for speech that causes a significant disruption to the school environment.
The silent protests continue to this day.
2024 pink wristband protest against transgender high school athletes
In 2024, two fathers in New Hampshire were barred from entering school grounds after they wore pink wristbands marked “XX” to school games. The wristbands were meant to protest the inclusion of transgender athletes in girls’ sports — an example of a silent protest that did not involve verbal speech but clearly advanced a particular point of view.
The parents sued for the right to continue wearing wristbands and to carry signs expressing their views. A federal judge in New Hampshire ruled against them, reasoning that the parents were targeting transgender athletes.
The parents’ lawyer, an attorney with the Institute for Free Speech, expressed his disagreement with the ruling, noting school officials “were obviously discriminating based on viewpoint because they perceived the XX wristbands to be ‘trans-exclusionary.’”
The attorney representing the school district noted that “the ruling doesn’t prevent the plaintiffs [the parents] from expressing their views in other ways.”
The parents are appealing the decision to the U.S. Court of Appeals for the 1st Circuit, and the U.S. Department of Justice may get involved to support them. Attorney General Pam Bondi posted to her account on X, “I have asked my [Civil Rights Division] to examine this matter. This DOJ stands with women and their supportive parents.”
The bottom line on silent protests and the First Amendment
Silent protest has been used throughout American history to express dissent or galvanize public support for causes — without the use of verbal communication.
Like other First Amendment freedoms, the right to protest is not unlimited. But silent protests are generally protected as speech and assembly — and, as seen during the Civil Rights Movement, such protests can be impactful, especially at a large scale.
David L. Hudson Jr. is a First Amendment fellow at Freedom Forum and an associate professor of law at Belmont University. He can be reached at [email protected].
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