SYMBOLIC SPEECH AND SOCIAL MEANING

The doctrine of symbolic speech holds that some conduct, for example f lag burning, may be sufficiently communicative to warrant First Amendm ent protection. What conduct constitutes symbolic speech, however, has been a vexing question. Spence v. Washington established a test to gu ide this inquiry, requiring courts to examine the actor's intent, the likelihood of audience understanding of the message being communicated , and the context of the activity. The traditional conception of Spenc e has ostensibly focused on the actual intent of the actor and on the case-specific facts at issue. This Note argues for a new understanding of symbolic-speech jurisprudence It contends that the actual intent o f the actor is not an independently relevant factor in the Spence anal ysis and, to the extent that intent is relevant to the inquiry, it is imputed intent that matters. Furthermore, this Note argues that courts tend not to address the facts in a symbolic-speech case at the case-s pecific level, but rather approach the issue at a much broader level o f generality. This broad inquiry entails grouping the conduct at issue together with other similar conduct and investigating the traditional social meaning of those categories of conduct. Viewed at this level o f generality, the second and third Spence factors of audience understa nding and context are Largely conflated. Finally, this Note investigat es the extent to which this reconceptualization of the symbolic-speech analysis can serve as a predictive model for future cases.