Thinking About Speaking and Doing in the Ninth Circuit: United States v. Swisher
Aaron Brecher authored a February 25 American Bar Association Section of Litigation Civil Rights Litigation article titled “Thinking About Speaking and Doing in the Ninth Circuit: United States v. Swisher.” The article discussed First Amendment cases and how determining whether an activity is characterized as speech or as expressive conduct often determines their outcomes. In United States v. Swisher, the Ninth Circuit Court of Appeals explained that the test centers around whether the speaker intends to convey a message with the activity, whether others would readily understand the activity as communicating a message and the nature of the government’s regulation. The court ruled that a now-repealed provision of the Stolen Valor Act, which criminalized wearing military medals that one did not earn, was unconstitutional.
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.