What Counts as Speech, Anyway?

Practicing law and litigating cases on a day-to-day basis, you often lose sight of big-picture, foundational legal questions.  In First Amendment law, however, it is important never to stray too far from these bigger questions, lest they come back to bite you: for example, how do you know that the conduct at issue in a given case was actually “speech” in the first place?  If it was not “speech,” then the First Amendment’s free speech protections cannot apply (nor, probably, can the procedural protections of anti-SLAPP law apply).

Professor R. George Wright at Indiana University School of Law published a very interesting article recently addressing just this issue, in the Pepperdine Law Review.  (Full text available here: http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1055&context=plr.)  Prof. Wright does a good job of pointing out how difficult a question this can be, and how little agreement there is over how best to resolve it.  Although it is well-established that expressive conduct can constitute “speech” under the First Amendment (e.g., draft-card burning during the Vietnam War, flag burning), cases abound in which it is not at all clear whether the conduct at issue is expressive in nature or merely ordinary (mis)conduct to which First Amendment protections do not apply.  One example given by Prof. Wright is the surprising number of cases that involve nude sunbathers arrested under various public indecency laws.  Is such conduct “speech,” sending the message that the human body is natural and so forth, or is it merely conduct?

Prof. Wright gives several answers to that question that have been applied by courts and academics, and points out the imperfections of each.  First, we can take the “originalist” approach and attempt to figure out what the Framers must have meant by “speech.”  But the constitutional text is vague, and the contemporary accounts of the Framers’ drafting of the Constitution often shed little light on how, precisely, “speech” should be defined in a given set of circumstances.

Second, we can take either a “functionalist” or a context-based approach, and ask whether, under the particular circumstances, the conduct either functioned, or was intended or received, as a message.  Did the nude sunbather choose to sunbathe in the nude at a rally for sunbathers’ rights, for instance, or did he simply walk outside his house naked one morning with no indication that he meant to communicate a message by doing so?  Certainly, context matters, but this is somewhat unsatisfactory in that it imposes on courts and litigants the vague and often arbitrary task of determining whether the context of the conduct indicates that it was in fact “speech” — in other words, this is not a satisfactory legal test that courts can apply in an efficient and predictable way.

Third, of course, we can look to legal precedent for the answer, but the Supreme Court has failed to consistently apply a single test for determining whether a given course of conduct is speech or not, and lower courts have also been inconsistent.

In the anti-SLAPP context, Prof. Wright’s work certainly confirms the difficulty of determining when conduct is speech.  Under California’s anti-SLAPP law, “conduct in furtherance of” a person’s free speech rights is a protected category.  (Code of Civil Procedure section 425.16, subdivision (e)(4).)  However, courts have varied greatly in how, and to what extent, they are willing to hold that a certain course of conduct is in furtherance of free speech rights for anti-SLAPP purposes.  Prof. Wright’s conclusion is that we must simply take every method of determining whether conduct is “speech” into account — that there is no “magic bullet” legal test to help us find the answer.  He may be right.

UPDATE: David L. Hudson Jr. at the First Amendment Center had an insightful April Fool’s Day piece on a similar issue — whether the act of throwing a pie in someone’s face is protected speech activity under the First Amendment.