Speech Beyond the Spoken Word: Symbolic Speech Explained

Symbolic speech refers to nonverbal and nonwritten forms of communication, such as picketing, wearing an armband, hoisting (or burning) a flag, and making a gesture such as a salute — or even displaying your middle finger. Symbolic speech may be even more powerful and carry more emotion than the spoken or written word; after all, “a picture is worth a thousand words.”

But does symbolic speech get the same First Amendment protection as other forms of expression? And what are some key historical cases and examples of symbolic speech?

Is symbolic speech protected by the First Amendment?

Symbolic speech typically receives First Amendment protection when 1) it’s intended to convey a particularized message and 2) it’s likely that others would understand that message.

The First Amendment itself reads in part that “Congress shall make no law … abridging the freedom of speech.” Over the years, courts have extended this protection to those who engage in symbolic speech.

However, the First Amendment only prevents government restrictions on the five freedoms it protects: religion, speech, press, assembly and petition. It doesn’t apply to private actors, be they private companies, private universities or private individuals.

When does symbolic speech lose First Amendment protection?

Symbolic speech is not always protected by the First Amendment.

For example, when it urges or incites imminent lawless action — that is, if it provokes others to immediately commit unlawful acts — it is not protected speech. Similarly, symbolic speech crosses the line and loses First Amendment protection if it is considered a true threat — that is, if the speaker intended to instill fear in someone or should have known the words would instill fear but said them anyway.

For example, in 2003, the U.S. Supreme Court upheld most of a Virginia law that banned cross burning when done with an intent to intimidate others, but it also recognized that burning a cross is a form of protected symbolic speech in other instances, such as when used as “a statement of ideology [or] a symbol of group solidarity.”

Furthermore, in public schools, students don’t lose their First Amendment rights “at the schoolhouse gate.” But if officials find a student’s speech — symbolic or otherwise — could cause a substantial disruption to school activities, they may be able to restrict that speech.

Consider a 2025 U.S. Court of Appeals decision out of Michigan.

In this case, a third grader wore a black baseball cap displaying a white star, a white image of an AR-15-style rifle, and the capitalized phrase “COME AND TAKE IT” to her elementary school in Durand, Michigan, near the site of a shooting at Oxford High School.

Although the student agreed to remove the hat when asked, her father later sued the school under the First Amendment, claiming the hat “only portrays support for the right to keep and bear arms in a non-violent, non-threatening manner.” But the court sided with the school officials, who believed that the rifle depicted on the hat might elicit “emotional and fear-based responses” among students, which included transfer students who relocated from the Oxford School District. The court also mentioned the age of elementary school children in its decision.

Under this set of facts, the court sided with the school and did not protect the student’s symbolic speech.

What are some historic court cases protecting symbolic speech?

The first case: A red flag at summer camp

The U.S. Supreme Court first recognized the concept of symbolic speech, at least implicitly, in Stromberg v. California (1931). The case involved 19-year-old Yetta Stromberg, a Young Communist League member who worked as a counselor at a summer camp in California. She often supervised and directed children at the camp in raising the red flag, a symbol associated with communism and Soviet Russia. To Stromberg, the red flag symbolized the message of freedom for the working class.

Officials charged Stromberg with violating a California law that prohibited the display of the red flag when it was used for one of three purposes: (1) as “a sign, symbol or emblem of opposition to organized government”; (2) as an invitation to engage in “anarchistic action”; or (3) as “an aid to propaganda that is of a seditious character.”

Stromberg was initially convicted in state court, but the U.S. Supreme Court reversed the decision. In his opinion, Chief Justice Charles Evans Hughes recognized that displaying the red flag was a type of speech and emphasized the importance of individuals to engage in “free political discussion.” While Hughes did not use the term “symbolic speech” in his opinion, many First Amendment experts consider the Stromberg decision to be the first time the Supreme Court protected symbolic speech under the First Amendment.

Student protest armbands

A landmark case for students and symbolic speech is Tinker v. Des Moines Independent Community School District (1969). In this case, the Supreme Court clarified the First Amendment’s protection of peaceful, symbolic expression. Middle-schooler Mary Beth Tinker and several other students wore black peace armbands to their respective public schools in Des Moines, Iowa, as a symbol of their opposition to U.S. involvement in the Vietnam War.

School officials learned of the students’ plans and quickly passed a no-armband rule. When the students wore them anyway, school officials suspended them. The suspension was challenged all the way to the U.S. Supreme Court, which ruled 7-2 in favor of the students, proclaiming that students do not lose “their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court also recognized that the students’ act of wearing the black armbands was a passive, peaceful form of symbolic speech that the court wrote was “akin to pure speech.”

Furthermore, the court emphasized that the Des Moines public school officials were unable to show that the armbands would cause a substantial disruption of school activities, nor that the armband-wearing students invaded or infringed on the rights of others.

Reminder: Burning the American flag is protected by the First Amendment.

People can still face charges related to flag burning — theft, inciting imminent lawless action, etc. — but the act of burning the flag as a form of protest has been an established right since 1989.

— Freedom Forum (@1stForAll) October 6, 2025

Burning the flag

More controversially, the Supreme Court also protected the act of burning the American flag as a form of political protest — and an example of symbolic speech — in Texas v. Johnson (1989). Gregory Lee Johnson burned a U.S. flag while he and others were protesting outside the Republican National Convention in Dallas in 1984.

Texas officials charged Johnson with violating a Texas law that prohibited flag desecration. However, the Supreme Court ruled in a 5-4 decision that Johnson’s flag burning was a form of expressive conduct and a kind of symbolic speech — and therefore protected by the First Amendment. The court acknowledged that while many people might find the act deeply offensive, that alone was not a sufficient justification for suppressing free expression.