In deciding whether particular conduct possesses sufficient communicative elements to bring U.S. Const. amend. I into play, the Supreme Court has asked whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.
Respondent participated in a political demonstration where he doused the American flag with kerosene and set it on fire as a means of political protest. Respondent was charged by the state and convicted of desecration of the flag. On appeal, the conviction was reversed and the court held that the state could not punish respondent for burning the flag as a part of political speech. The state sought a writ of certiorari to determine whether the conviction was consistent with the constitution.
was the action protected by political speech?
The Supreme Court held that state's interest in preventing breaches of the peace did not support respondent's conviction because his conduct did not threaten to disturb the peace. Additionally, the state's interest in preserving the flag as a symbol of nationhood did not justify the criminal conviction for engaging in political expression. The Supreme Court affirmed the decision of the court of appeals.