February 25, 2016
Thinking about Speaking and Doing in the Ninth Circuit: United States v. Swisher
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 protectionthan 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Swisher ruled unconstitutional a now-repealed provision of the Stolen Valor Act that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
_________________________________________________________________________________________________________
© 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.
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.
_________________________________________________________________________________________________________
© 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.