Filed: Sep. 13, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 9-13-1995 Troster v PA State Dept Corr Precedential or Non-Precedential: Docket 94-3162 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Troster v PA State Dept Corr" (1995). 1995 Decisions. Paper 253. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/253 This decision is brought to you for free and open access by the Opinions of the Unit
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 9-13-1995 Troster v PA State Dept Corr Precedential or Non-Precedential: Docket 94-3162 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Troster v PA State Dept Corr" (1995). 1995 Decisions. Paper 253. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/253 This decision is brought to you for free and open access by the Opinions of the Unite..
More
Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
9-13-1995
Troster v PA State Dept Corr
Precedential or Non-Precedential:
Docket 94-3162
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Troster v PA State Dept Corr" (1995). 1995 Decisions. Paper 253.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/253
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 94-3162
DIETER H.M. TROSTER
v.
PENNSYLVANIA STATE DEPARTMENT OF
CORRECTIONS; JOSEPH D. LEHMAN, COMMISSIONER;
FREDERICK ROSEMEYER, SUPERINTENDENT
DIETER TROSTER,
Appellant
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 94-cv-00131)
Argued: September 22, 1994
Before: BECKER, COWEN, Circuit Judges,
and GARTH, Senior Circuit Judge
(Filed: September 13, 1995)
BRUCE V. HICKS, ESQUIRE
(ARGUED)
JOHN H. BINGLER, ESQUIRE
Thorp, Reed & Armstrong
One Riverfront Center
Pittsburgh, PA 15222
WITOLD J. WALCZAK, ESQUIRE
American Civil Liberties
Union
237 Oakland Avenue
3rd Floor
Pittsburgh, PA 15213
Counsel for Appellant
1
ERNEST D. PREATE, JR.,
ESQUIRE
Attorney General
THOMAS F. HALLORAN, JR.,
ESQUIRE (ARGUED)
GLORIA A. TISCHUK, ESQUIRE
CALVIN R. KOONS, ESQUIRE
JOHN G. KNORR, III, ESQUIRE
Office of Attorney General
of Pennsylvania
564 Forbes Avenue
Manor Complex
Pittsburgh, PA 15219
Counsel for Appellees
OPINION OF THE COURT
BECKER, Circuit Judge.
Appellant Dieter Troster, an employee of the State
Correctional Institution at Greensburg, Pennsylvania (“SCI”), is
in danger of losing his job as a corrections officer because, as
a matter of principle, he refuses to wear an American flag patch
on his uniform as required by departmental regulations. He filed
suit in the District Court for the Western District of
Pennsylvania against the Pennsylvania State Department of
Corrections, its Commissioner Joseph D. Lehman, and SCI
Superintendent Fredric A. Rosemeyer, seeking injunctive and
declaratory relief under 28 U.S.C. § 1983. After holding an
evidentiary hearing, the district court denied Troster's request
for a preliminary injunction. The Pennsylvania Department of
Corrections then ordered Troster suspended for five days for
gross insubordination. This court granted an emergency motion
2
for an injunction pending appeal, and Troster has remained on the
job. Troster has appealed the district court's order denying him
a preliminary injunction.
Troster advances two theories to support his
allegations that the threatened disciplinary action violates his
rights under the First and Fourteenth Amendments. First, he
advances a "compelled speech" argument--that the flag patch
regulation that he refuses to observe unconstitutionally compels
him to engage in expressive or symbolic conduct. Second, he
presses a "symbolic protest" theory, under which he urges that
his refusal to comply with the department regulation should be
protected as expressive or symbolic conduct intended and likely
to communicate his opposition to being compelled to "speak" by
wearing the flag patch.
In Part 8 of this opinion we hold that Troster did not
demonstrate a likelihood of success on the merits of his
compelled expression claim. Even recognizing that in the wake of
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, 115 S. Ct. 2338, 2344 (1995), the threshold test of
expressiveness necessary to raise a First Amendment compelled
expression claim is no longer as stringent as we previously
suggested in Steirer by Steirer v. Bethlehem Area Sch. Dist.,
987
F.2d 989 (3d Cir. 1993), see infra at 9-11 & n.11, we believe
that on the record before it the district court properly
concluded that the Department's flag patch regulation did not
require correctional officers such as Troster to engage in any
conduct sufficiently imbued with elements of communication that
3
the regulation might be forbidden by the First Amendment's
proscription against compelled speech.
With respect to the alternative symbolic protest
theory, we conclude in Part 17 that, under the particular facts
of this case, Troster has not stated an analytically independent
claim of constitutional violation. One who violates a
governmental compulsion to speak or engage in expressive conduct
merely to express opposition to that compulsion on "compelled
expression" grounds engages in no independently constitutionally
protected conduct. In such a case the appropriate rubric for a
First Amendment claim is simply "compelled expression," and that
is therefore the sole free speech theory that we consider. As
noted, it fails on the present record. Accordingly, the order of
the district court denying Troster's motion for a preliminary
injunction must be affirmed.
1. FACTS AND PROCEDURAL HISTORY
Dieter Troster is a naturalized American who emigrated
to the United States from Germany when he was in his early
twenties. He enlisted in the U.S. army, went to Officers'
Candidate School, became an officer, and was eventually promoted
to the rank of Major. In 1981 he retired after twenty years of
service, including time in Viet Nam. Two years later Troster
secured employment with SCI. He has since received promotions
taking him from Corrections Officer Trainee to Corrections
Officer 2 with the rank of Sergeant. His duties include
supervising inmates acting as janitors and directing other
corrections officers in their assigned tasks. Troster is also a
4
Training Sergeant, and he thus serves as an example to lower
ranking corrections officers.
In 1991, the American Federation of State, County and
Municipal Employees, the bargaining representative for the
corrections officers, requested the Department to allow officers
to wear an American flag patch on their uniforms. The Department
adopted a regulation allowing officers up through the rank of
Sergeant to wear an American flag patch on the right shoulder
sleeve of their uniform shirts. The patch authorized by the
Department displays the flag with the star field oriented toward
the officer's back (with the star field in its customary position
in the upper left corner of the flag). Although the original
regulation was permissive, on February 15, 1993 the Department
promulgated new uniform regulations (effective March 15) that
mandated display of the flag patch on the right sleeve of the
uniform shirt, star field oriented toward the rear.
The Department adopts regulations concerning uniforms,
including the flag patch regulation, with the intent of
projecting the image of a professional correctional force. The
district court found that such an image is important to the
overall operations and security of SCI. The presence of the
American flag patch is now one of the identifying features of a
corrections officers's uniform, which indicates, the district
court found, that the wearer is authorized to exercise the lawful
powers of corrections officers, including the use of firearms.
The district court accepted Superintendent Rosemeyer's contention
that the Department's interest in displaying the American flag as
5
part of the uniform is legitimate because it fosters loyalty and
obedience to superior officers.
Almost immediately upon adoption of the mandatory flag
patch regulation, Troster objected to being compelled to display
the American flag. He believes that state-compelled display
desecrates the flag and debases it. Troster considers the
required displays deeply objectionable not only because of his
conviction that the American flag symbolizes freedom from state-
coerced political or patriotic speech, but also because, in his
view, displaying the flag with its star field to the rear
signifies cowardice and retreat from the principles for which the
flag stands. Troster further believes that the "New Flag Code"
Resolution adopted by Congress in 1976, 36 U.S.C. §§ 173-177,
does not authorize corrections officers to wear the flag as part
of their uniform (although he does not press this argument on
appeal).
In May 1993, in response to Troster's objections, the
Department decided not to enforce the flag patch regulation
pending review by the Department's General Counsel. Thus, the
regulation remained optional or unenforced from the spring of
1991 to January 27, 1994, with few if any disciplinary problems
resulting. Operations ran smoothly at SCI during this time.
Nevertheless, despite the fact that Troster's
performance as a corrections officer had otherwise been
completely satisfactory, on January 20, 1994 the Superintendent
of SCI notified Troster that the Department would begin enforcing
the flag patch requirement on January 27, and that he must comply
6
or face disciplinary proceedings. Troster continued to refuse to
wear the flag, and on January 26 he filed this 28 U.S.C. § 1983
action seeking declaratory and injunctive relief against the
mandatory aspect of the Department's flag patch regulation. The
next day the Department ordered Troster to appear at a fact
finding meeting.
There, Troster was advised that his continuing refusal
to comply with the regulation constituted gross insubordination
and violated specific paragraphs of the Correctional Officer's
Code of Ethics. A disciplinary hearing was set for February 8.
In the interim, however, a short-term agreement between Troster's
and the Department's counsel allowed Troster to continue working
without wearing the patch. Except for that temporary
dispensation for Troster, the Department has enforced the
regulation uniformly since the end of January 1994.
On February 1, 1994, Troster moved for a preliminary
injunction against the Department's attempts to discipline him
and against the mandatory aspect of the flag patch regulation on
which those proceedings were based. On February 3, the district
court held a hearing on this motion, at which time the
Corrections Department agreed to stay disciplinary proceedings
against Troster until the court ruled on the injunction.
By order dated March 18 the district court denied
Troster's motion. The court concluded that Troster had failed to
demonstrate a likelihood of success on the merits because neither
the flag patch regulation nor Troster's refusal to wear the patch
was sufficiently expressive to be protectable under First
7
Amendment free speech rights. Five days later, Troster moved for
reconsideration or injunction pending appeal. Two days after
this motion the Corrections Department held a pre-disciplinary
conference; four days later the district court denied Troster's
request for reconsideration. On April 4 Troster filed a notice
of appeal. The next day, he moved in this court by motion for an
emergency injunction pending appeal. Defendants notified Troster
that if he continued to refuse to wear the flag patch, he would
be suspended for five days commencing April 9. On April 8, a
motions panel of this court granted Troster's motion for an
injunction pending appeal. We have jurisdiction under 28 U.S.C.
§ 1292(b). We review the grant or denial of a preliminary
injunction for abuse of discretion; the district court's
discretion is abused if it erred in stating or applying the law.
See Frumer v. Cheltenham Tp., 709 F.2d 874, 876 (3d Cir. 1983).
2. THE COMPELLED EXPRESSION CLAIM
a.
Troster objects to the compulsory aspect of the
Department's flag patch regulation on the grounds that it compels
him to engage in expressive conduct in violation of the First
Amendment. "[T]he protection granted by the First Amendment is
not limited to verbal utterances but extends as well to
expressive conduct." Steirer by Steirer v. Bethlehem Area Sch.
Dist., 987 F.2d 989, 994 (3d Cir. 1993). Moreover, "[t]he
freedom of speech protected by the First Amendment, though not
absolute, includes both the right to speak freely and the right
to refrain from speaking at all."
Id. at 993 (quoting Wooley v.
8
Maynard, 430 U.S. at 714, 97 S. Ct. at 1435) (internal quotation
marks and footnote omitted).
We are not dealing here with compelled disclosure of
personal or private information. See, e.g., Leora Harpaz,
Justice Jackson's Flag Salute Legacy: The Supreme Court
Struggles to Protect Intellectual Individualism, 64 TEX. L. REV.
817, 818 (1986) (distinguishing "[t]wo distinct kinds of liberty
interest [that] support the right to refrain from expressive
activity[,] . . . . an interest in not being forced to reveal
information about personal beliefs or associations . . . . [and]
an interest in not being forced to belong to any organization or
to make any statements when [individuals] would rather be silent
or express different views") [hereinafter Harpaz, Intellectual
Individualism]; Shelton v. Tucker, 364 U.S. 479, 484-90,
81
S. Ct. 247, 250-53 (1960) (public school teacher need not reveal
all organizations to which teacher has belonged). Instead, the
issue is whether the flag patch requirement "invades the sphere
of intellect and spirit which it is the purpose of the First
Amendment to our Constitution to reserve from all official
control," West Virginia St. Bd. of Educ. v. Barnette,
319 U.S.
624, 642,
63 S. Ct. 1178, 1187 (1943).
The threshold issue with respect to Troster's compelled
expression claim is whether the flag patch regulation required
Troster to engage in expressive conduct. In Steirer by Steirer
v. Bethlehem Area School District, 987 F.2d 989 (3d Cir. 1993),
this court held that, in order for governmentally compelled
conduct to be considered "expressive" within the meaning of the
9
First Amendment, the actor must have "[a]n intent to convey a
particularized message . . . and in the surrounding circumstances
the likelihood [must be] great that the message would be
understood by those who viewed it.'" Id. at 995 (quoting with
alteration Spence v. Washington,
418 U.S. 405, 410-11,
94 S. Ct.
2727, 2730 (1974) (per curiam) (emphases supplied here). When
determining whether conduct is expressive for First Amendment
purposes, many other courts and commentators have also
interpreted Spence to require both an intent to convey a
particularized message and a great likelihood that this message
will be understood.
Whether or not this reading of Spence was justified,0
the Supreme Court just this past term has made clear that "a
narrow, succinctly articulable message is not a condition of
constitutional protection, which if confined to expressions
conveying a `particularized message,' cf. Spence v. Washington,
418 U.S. 405, 411,
94 S. Ct. 2727, 2730 (1974) (per curiam),
would never reach the unquestionably shielded painting of Jackson
0
Spence, which has become the touchstone for evaluating whether
conduct is expressive for First Amendment purposes, contained no
language of necessity. A particularized intent and a likelihood
that the message would be understood were present in that case,
but the Supreme Court did not say that those were always required
for expressive conduct. Rather, after discussing the context in
which Spence's protest occurred, the next paragraph of the
Court's opinion "noted, further, that [Spence's conduct] was not
an act of mindless nihilism."
Id. at 410, 94 S. Ct. at 2730. In
concluding the paragraph elaborating this observation, the Court
simply explained that in Spence's case, "[a]n intent to convey a
particularized message was present, and in the surrounding
circumstances the likelihood was great that the message would be
understood by those who viewed it."
Id. at 410-11, 94 S. Ct. at
2730.
10
Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis
Carroll." Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 115 S. Ct. 2338, 2345 (1995) (citation omitted).
In light of Hurley, we believe that Steirer's
restrictive test is no longer viable, and that the expressiveness
of conduct should be gauged by the language that Spence
explicitly articulated as a test: whether, considering "the
nature of [the] activity, combined with the factual context and
environment in which it was undertaken," we are led to the
conclusion that the "activity was sufficiently imbued with
elements of communication to fall within the scope of the First
and Fourteenth Amendments . . . ." Spence, 418 U.S. at 409-10,
94 S. Ct. at 2730. This test for determining whether the flag
patch requirement compels "expression" from Troster and the other
corrections officers is a fact-sensitive, context dependent
inquiry. And, Troster's contentions to the contrary
notwithstanding, we apply this test not only to symbolic protest
cases (see discussion infra) but also to cases alleging compelled
expressive conduct. The burden of proof concerning this question
is on Troster, and, as we now explain, he has not at this point
met his burden under Spence.
b.
We note at the outset of our analysis that this case is
unlike most of the Supreme Court's compelled expression cases in
that it does not involve actual verbal or written expression. In
Barnette, the plaintiff schoolchildren were required to salute
the American flag and to recite the pledge of allegiance. 319
11
U.S. at 628-29, 63 S. Ct. at 1180-81. In Wooley v. Maynard, the
plaintiffs were required to display the written ideological
slogan "Live Free or Die" (New Hampshire's state motto) on their
license plates. Even in Abood v. Detroit Board of Education,
431
U.S. 209,
97 S. Ct. 1782 (1977), "a state-required contribution
by public school teachers to a labor union's activities was
deemed expressive conduct, but only to the extent those union
activities involved the expression of political views, the
support of political candidates or the advancement of other
ideological causes."
Steirer, 987 F.2d at 995 (citing
Abood, 431
U.S. at 234-36, 97 S. Ct. at 1799-1800).
In contrast to Wooley, Barnette, and Abood, the
compulsion to which Troster objects does not involve words, which
convey a clear ideological message.0 Even if other drivers or
pedestrians did not think that the Maynards (as opposed to the
state) were the source of the message "Live Free or Die," the
message was being delivered to such bystanders. Here, in
contrast, flag patch observers are presented with a symbol that
has various and somewhat imprecise ideas associated with it.
Completely aside from the question of misattribution, see, e.g.,
Hurley, 115 S. Ct. at 2349 (reserving the question of "the
0
Although other Supreme Court cases involved First Amendment
challenges to required statements that were not ideological, see,
e.g., Riley v. National Federation for the Blind,
487 U.S. 781,
795-801,
108 S. Ct. 2667, 2676-80 (1988) (invalidating law
requiring professional fundraisers to disclose to donors
percentage of contributions turned over to charities), these are
more properly viewed as "compelled disclosure" cases, rather than
"intellectual individualism" cases like Barnette, Wooley, and
Abood. See Harpaz, Intellectual Individualism, 64 TEX. L. REV. at
818-19.
12
precise significance of the likelihood of misattribution"), the
record does not sustain the conclusion that the flag patch on the
correctional officers' uniforms will relay any message
(ideological or otherwise) to anyone; Troster has presented no
evidence that it is likely to function in a communicative
fashion.
The conduct required of Troster bears a slightly
greater resemblance to that demanded of the plaintiff in Lipp v.
Morris, 579 F.2d 834 (3d Cir. 1978), where a high school student
successfully challenged the requirement that she "show full
respect to the flag while the pledge is being given merely by
standing at attention" during the flag salute and recitation of
the Pledge of Allegiance.
Id. at 835 n.2 (emphases supplied).
We also recognize some similarity among the governmental purposes
in Barnette, Lipp, and here: in Barnette the state required
students to salute the flag and recite the Pledge of Allegiance
in order to promote national unity,
see 319 U.S. at 631 n.12, 63
S. Ct. at 1182 n.12; in Lipp the state required the plaintiff to
stand in order to demonstrate respect for the flag; and here the
state required Troster to wear the flag in part to foster loyalty
and obedience to his superior officers. Additionally, we may
agree with Troster that the flag of the United States is an
"obviously expressive element," Br. of Appellant at 26-27
(quoting
Steirer, 987 F.2d at 995), and we are fully cognizant
that the flag is a unique symbol in our history, one "[p]regnant
with expressive content." Texas v. Johnson,
491 U.S. 397, 405,
109 S. Ct. 2533, 2540 (1989).
13
Nevertheless, we think that the gap between Troster's
case and Lipp is not one that we may bridge on the present
record. As the Supreme Court has admonished, not every action
taken with respect to the flag is expressive. Id. Under the
circumstances in Lipp, the conduct required of the plaintiff
plainly could be seen as a demonstrative act of respect for the
flag shown by her (coerced) actions. She was required to stand
silently at attention, displaying respect, while her classmates
saluted the flag. The government had thus specifically required
that she engage in conduct manifesting an attitude. Here,
however, it is not apparent from the record that the conduct
required of Troster--passively wearing the flag patch--is
similarly demonstrative of an attitude or belief.0 Rather, there
is presently no basis for concluding that the requirement that
Troster wear the flag patch on his uniform compels him in effect
"to profess any statement of belief or to engage in any ceremony
of assent to one."
Barnette, 319 U.S. at 634, 63 S. Ct. at
1183.0
0
We are aware--and if Troster establishes the communicative
nature of the flag patch regulation at the final hearing the
district court should bear in mind--that in Wooley v. Maynard,
the Supreme Court recognized that "[c]ompelling the affirmative
act of a flag salute involved a more serious infringement upon
personal liberties than the passive act of carrying the state
motto on [one's] license plate, but" it considered "the
difference [to be] essentially one of
degree." 430 U.S. at 715,
97 S. Ct. at 1435 (quoted in Laurie Allen Gallancy, Teachers and
the Pledge of Allegiance, 57 U. CHI. L. REV. 929, 939 (1990)).
0
From the failure of the opinion in Lipp to mention "record
evidence that standing during the flag ceremonies conveyed a
particularized message," Br. of Appellant at 26, and the
approving citation of Lipp in
Steirer, 987 F.2d at 994, Troster
argues that "the Steirer court could not have enunciated a
14
Troster was one of an entire force of corrections
personnel required to wear the flag patch on their uniforms.
Evidence at the hearing showed that the uniforms of a large
number of organizations have flag patches on them. Troster,
however, presented the district court with no evidence (for
example, surveys) suggesting that anyone (other than himself)
would be likely to view the wearing of the patch as communicative
or expressive, or that people who wear such uniforms with such
flag patches actually assert anything to anyone. Observers might
perhaps infer that the wearer is patriotic, but Troster put on no
evidence that observers would likely understand the patch or the
wearer to be telling them anything about the wearers' beliefs.
Cf. Peter Meijes Tiersma, Nonverbal Communication and the Freedom
of "Speech", 1993 WIS. L. REV. 1525, 1554 & n.122 (citing H.L.A.
principle that required record evidence to support the
proposition that the act in question will be understood in a
particular fashion, as the District Court required in this case,"
Br. of Appellant at 26-27. The district court, at the time
properly following Steirer, may have searched for too narrow a
message in the act of wearing the flag patch. See discussion
supra n.10 and accompanying text. However, neither that fact nor
the lack of citation to record evidence in the Lipp opinion
relieves Troster of the burden of showing that the flag patch
regulation compelled him to engage in expressive conduct. The
state-coerced conduct at issue in Lipp was a ceremonial
gesture--"standing at attention"--occurring in the midst of even
more blatant expressions of respect for the flag, all confined to
a brief set period each school day. Here, the conduct at issue
is the wearing of a small patch on a uniform sleeve throughout
the entire work day. We do not agree with Troster that it is
"readily inferable," Br. of Appellant at 27, that wearing a flag
patch on a corrections officer's uniform "would be seen by most,
if not all, observers as showing respect for the flag,"
id., and
we do not think it too great a burden on Troster's First
Amendment interests to require him to come forth with some
evidence to support his otherwise bare assertion that the flag
patch regulation compels expressive conduct.
15
Hart, Signs & Words, 2 PHIL. Q. 59, 61-62 (1952), discussing
whether neighbor shutting windows in preparation for coming storm
asserts something thereby, and concluding "no") [hereinafter
Tiersma, Nonverbal Communication].
We do not know whether survey data might be available
to support Troster's expressive conduct claim. Perhaps Americans
(or even an appropriate subset thereof, such as inmates and staff
of and visitors to SCI) do in fact perceive people who wear (for
example) a Boy Scout, Girl Scout, or police uniform with a flag
patch as expressing a patriotic or other ideological message or
agreement therewith; perhaps not.
Our duty, however, is to evaluate Troster's likelihood
of success on the basis of the evidence presented. And as we
discuss below, see infra at 18-21, the Supreme Court has
cautioned that the First Amendment should not be held to shield a
limitless variety of conduct from governmental regulation. Thus,
sympathetic as we may be to Troster's genuine patriotism as well
as with his predicament, we cannot accept his suggestion that we
hold, as a matter of "common sense" and law, that the mere act of
wearing a uniform with a flag patch on it constitutes an
expressive or communicative "use" of the flag, cf. Spence, 418
U.S. at 410, 94 S. Ct. at 2730 (“The Court for decades has
recognized the communicative connotations of the use of flags.”)
(emphasis supplied), within the scope of the First Amendment.
c.
In short, Troster has not at this time met his burden.
The district court's factual conclusion that "[w]earing the flag
16
patch on a corrections officer's uniform . . . does not convey
any agreement or disagreement with all or any of the many things
a flag may symbolize, or the Department's view of the flag," op.
at 21, App. at 124, is sufficiently supported by the current
record. Accordingly, we hold that Troster has not shown a
reasonable likelihood of success on the merits with respect to
his compelled expression claim, for he has not made the necessary
threshold showing that he was (probably) coerced to engage in
expressive conduct. Thus, Troster presented the district court
with no basis to have granted him a preliminary injunction.
3. VIABILITY OF THE SYMBOLIC PROTEST THEORY IN THESE CIRCUMSTANCES
a.
Troster's alternative theory is that, given the
circumstances, his refusal to wear the flag patch required by the
Department constituted symbolic expressive conduct protected by
the First Amendment.0 This raises the question whether Troster
can present both the compelled expression and symbolic protest
claims, that is, whether he has an analytically independent
symbolic speech claim? While we do not gainsay that a refusal to
comply with a governmental directive may in some cases amount to
symbolic protest covered by the First Amendment, this is not one
of those cases.
Our narrow conclusion does not ignore the Supreme
Court's historical solicitude for free speech claims, its high
0
Technically the First Amendment is inoperative against the
states, but its strictures are nonetheless binding on the states
via the Fourteenth Amendment. For simplicity, however, this
opinion frequently refers only to the First Amendment.
17
regard for a "preferred right[]," see, e.g., Smith v. People, 361
U.S. 147, 169,
80 S. Ct. 215, 227 (Douglas, J., concurring),
reaffirmed in several of the Court's recent decisions.0 But we
are satisfied that where, as here, a person seeks only to express
opposition to what he or she perceives as a governmental
compulsion to engage in speech or expressive conduct, refusing to
comply with the very governmental compulsion at issue is not
protected as symbolic protest under the First Amendment, for that
theory obscures the nature of the interests at stake. Put
differently, in circumstances such as these where there is a
colorable claim that a governmental compulsion violates the First
Amendment's restrictions on governmentally compelled speech,
there are not two potentially viable arguments that the
Constitution's free speech guarantees protect a person's refusal
to comply with the governmental compulsion solely because of
opposition to the compulsion. The compulsion to "speak" may be
addressed either as a symbolic protest claim, or as a compelled
speech claim, but not both. Here, as shall be apparent, the most
apt rubric is compelled expression.
Our conclusion that Troster may not raise both a
compelled expression claim and a symbolic protest claim grounded
solely in objection to compelled speech is animated by the
caution with which the Supreme Court has instructed courts to
view symbolic conduct claims. The Court has warned that not all
0
In the 1994-1995 term, the Supreme Court ruled on eight free
speech claims. "In seven of eight First Amendment-related cases,
the party asserting free speech rights prevailed." 64 U.S.L.W.
3055 (Aug. 1, 1995).
18
conduct, even conduct involving the flag of the United States, is
"expressive" for purposes of the First Amendment. See Texas v.
Johnson, 491 U.S. at 405, 109 S. Ct. at 2540. We do not presume
that Troster's refusal to wear the flag patch on his correctional
officer's uniform was not expressive as a factual matter. See
also infra at 22. Rather, we believe that as a legal matter, the
First Amendment does not protect any "right" to disobey a
governmental compulsion for the sole purpose of expressing
protest against the compulsion on the grounds that it allegedly
requires one to engage in speech or expressive conduct.
As Professor Tiersma has explained, a recurring
jurisprudential concern "is that the Free Speech Clause may be
invoked by anyone who violates a law, claiming to protest against
it." Tiersma, Nonverbal Communication, 1993 WIS. L. REV. at 1585.
For example, Tiersma recounts that in Cox v. Louisiana the
Supreme Court stated that "[o]ne would not be justified in
ignoring the familiar red light because this was thought to be a
means of social protest." Id. (quoting Cox, 379 U.S. 536, 554,
85 S. Ct. 453, 464 (1965)). Similarly, Justice Scalia has
observed that "virtually every law restricts conduct, and
virtually any prohibited conduct can be performed for an
expressive purpose--if only expressive of the fact that the actor
disagrees with the prohibition." Barnes v. Glen Theatre, Inc.,
501 U.S. 560, 576,
111 S. Ct. 2456, 2466 (1991) (Scalia, J.,
concurring) (emphasis supplied) (cited in Tiersma, Nonverbal
Communication, 1993 WIS. L. REV. at 1585-86). See also, e.g.,
State of Washington v. Adams,
479 P.2d 148 (Wash. App. 1971)
19
(rejecting defendant's contention that his using a set net in
violation of regulatory salmon fishing statute was "symbolic
speech" protected by First Amendment where defendant's only
purpose in using the net was to demonstrate the irrationality of
the statute prohibiting its use).
As the foregoing discussion suggests, permitting
parties to pursue a claim that the First Amendment grants them a
right to violate a law solely as a means of publicizing their
objection to that law would burden courts with essentially
duplicative First Amendment claims. We believe that this problem
is particularly acute where individuals violating a governmental
compulsion to engage in some behavior merely assert that their
violation expresses their belief that the compulsion
unconstitutionally requires them to speak or engage in expressive
conduct. In such circumstances, both the compelled speech and
the putative symbolic protest theories involve the same
objection: the individual does not want to be used by government
as a mouthpiece to disseminate ideological messages. The
symbolic protest theory simply adds a desire to communicate this
opposition to others.
The addition of a constitutional symbolic protest claim
to a compelled speech claim in this circumstance would only serve
to give individuals an additional yet futile bite at the apple.0
0
Limited as our powers of imagination may be, we nevertheless
cannot conceive of circumstances in which individuals' symbolic
protest claims grounded solely in refusal to engage in allegedly
coerced expressive conduct could succeed where the root
expressive conduct claim failed. If government had an interest
sufficient under the First Amendment to justify compelling
20
We do not believe that the Constitution's free speech guarantees
countenance such a waste of judicial resources (and of the
governmental resources needed to defend such claims). It
distorts the constitutional inquiry to shift the focus away from
the government's interest in enforcing its expressive-conduct
compulsion (despite opposition thereto), to focus instead on the
individual's interest in communicating opposition by violating
the compulsion, as Troster's dual theory would do. Rather, we
believe that, in circumstances such as these, the goal of the
individual's conduct is properly characterized with regard to the
First Amendment as avoiding the compulsion, rather than
expressing disagreement with it.
In sum, symbolic protest claims are not analytically
independent of compelled expressive conduct claims in the
circumstances that we have described. Courts must therefore
determine which theory more accurately captures the essence of
the constitutional objection. Cf. Walters v. National Ass'n of
Radiation Survivors, 473 U.S. 305, 335,
105 S. Ct. 3180, 3196-97
(1985) (holding that free speech claim essentially duplicating
the objection presented in due process claim was of "no
independent significance"). In this case, it is the compelled
expressive conduct claim. We hold that Troster's conduct was not
constitutionally protected as a means of symbolically expressing
individuals to deliver ideological messages despite their
opposition, it seems that interest would also be sufficient to
justify requiring the individual to deliver the message despite
his or her desire to communicate that opposition (to either the
message or the compulsion) by refusing to deliver it.
21
opposition, on compelled expression grounds, to the expressive
conduct that Troster perceived the flag patch requirement to
compel.
b.
This holding does not require us to reject the
reasoning of Leonard v. City of Columbus, 705 F.2d 1299 (11th
Cir. 1983), upon which Troster relies and which bears some
factual similarity to the instant case. In Leonard, a number of
police officers were disciplined for appearing in uniform without
the flag patch required by departmental regulations. The
officers had staged a public rally at which they removed their
patches to protest racial discrimination within the police force.
The court of appeals held that the officers' conduct amounted to
symbolic speech protected by the First Amendment. See
id. at
1304.
Troster suggests that this holding at the very least
strongly counsels for a ruling in his favor. Leonard, however,
is unlike this case in a crucial respect, which we believe is
what the district court was driving at when it distinguished
Troster's situation from Leonard on the grounds that Troster
lacked an "underlying political or patriotic message." Op. at 21
(JA 000124).
In Leonard, although the conduct at issue (the means of
the officers' protest) was violation of the flag patch
regulation, the object of the protest was not the regulation
itself, but rather discrimination by the Department. The reason
for the protest was that the Department's alleged racial
22
discrimination violated their rights to equal protection of the
laws, not a belief by the officers that the regulation compelled
them to engage in expressive conduct in violation of their First
Amendment rights. Thus, the officers were engaged in speech for
some reason other than protesting being used as a governmental
mouthpiece.
As in Leonard, the means of Troster's protest was also
violation of a departmental flag patch regulation. In contrast
to the officers' protest in Leonard, however, the object of
Troster's protest was the regulation itself. The reason for
Troster's violation was that the regulation allegedly
unconstitutionally compelled him to "speak" by wearing the patch
on his uniform. Thus, even if Troster engaged in symbolic speech
by violating the flag patch regulation, he did so solely for the
purpose of protesting the fact that (in his view) the regulation
improperly compelled him to "speak." Hence, it is apparent that
the reason for Troster's conduct--namely, his violation of the
Department's flag patch regulation, which was the basis for the
disciplinary proceedings that he seeks to enjoin permanently--the
only point that he was trying to make, was that the regulation
violated his First Amendment right not to be a mouthpiece for the
government. Troster's symbolic protest claim is thus wholly
derivative from his compelled expression claim, which is the
essence of his objection to the flag patch regulation, and his
23
free speech objection should accordingly be subject only to
compelled expression analysis.0
Similarly, the symbolic protest claim in Spence v.
Washington, 418 U.S. at 405, 94 S. Ct. at 2727, was not
derivative of a compelled expression claim. There, Spence
displayed an American flag with peace signs attached in order to
protest American violence in Cambodia and at Kent State. After
being arrested for violating a law that prohibited improper
display of the American flag, his successful claim was that he
had a First Amendment right to express his message in that
fashion, and that the state could not constitutionally punish him
for doing so. Spence's means of expression was a violation of the
flag display statute, but the reason for his protest, the message
he sought to convey, was not a belief that the flag display
statute (a prohibitory measure) compelled him to express
0
This derivative relationship would not be present in the case of
a Rosa Parks sitting in the front of a segregated bus. If her
actions were analyzed as expressive conduct, her message would
not be that the ordinance requiring her to sit at the back of the
bus was forcing her to say something. She would not be simply
protesting being used as a mouthpiece to deliver some
governmental message. Her message would be that the Jim Crow
regime was denying her the equal protection of the laws. Thus,
even if she were to raise both an equal protection and a symbolic
protest claim against the governmental compulsion, her
message--conveyed by her violation of the seating
ordinance--would be more than simply opposition to being forced
by the ordinance to "say" something, and thus she would have only
one colorable free speech claim, and symbolic protest (rather
than compelled expression) would be the appropriate mode of
analysis. While the seating requirement certainly reflected a
racist attitude or view about the dignity and social status of
black Americans, objection merely to compelled "speech" simply
would not have been the only message Rosa Parks sought to convey
by her actions.
24
something that he did not want to say. He was not protesting
being forced to act as a mouthpiece for government. Thus, the
free speech claim in Spence lacks the duplicative quality of
Troster's claim(s), and that case does not help him establish
independent viability of his symbolic protest theory.0
c.
Our conclusion that Troster cannot press both theories
is further supported by the Supreme Court's treatment of the
First Amendment claims in Wooley v. Maynard, 430 U.S. at 705, 97
S. Ct. at 1428. The plaintiffs in that case were two Jehovah's
Witnesses who objected on political and religious grounds to
being required to display New Hampshire's state motto--"Live Free
or Die"--that was imprinted on their license plate. After being
prosecuted several times for covering the motto, the Maynards
challenged the constitutionality of the state law making it a
crime to obscure the motto, seeking injunctive relief prohibiting
future prosecutions for their covering the motto (usually with
0
Indeed, even a person who burns a flag to protest a statute
prohibiting flag burning would not have the same derivative
structure to his or her claim. Certainly, the means of the
symbolic protest would be a violation of the very law that is the
object of the protest. But the reason for the protest would be a
belief that the statute unconstitutionally prohibited him or her
from speaking; while there may be viewpoint discrimination at
work, there is no colorable compelled speech claim there. By
prohibiting flag burning, the statute simply does not require the
hypothetical banner burner to express anything. So there is just
one free speech claim in this scenario: that government is
unconstitutionally prohibiting an individual from speaking his or
her mind. The flag burner cannot claim that the prohibition
forces her to act as a mouthpiece for government, and there is
thus no difficulty in letting the individual proceed with a
symbolic protest claim.
25
red reflective tape). The Maynards argued both that their act of
covering the motto was constitutionally protected because it was
necessary for them to avoid a compelled affirmation of belief,
and that their act constituted protected symbolic speech not
outweighed by sufficient state interests. A three-judge district
court declined to "consider whether their First Amendment right
to be free from a required affirmation of belief is implicated,"
concluding instead that the Maynards' affirmative act of covering
the motto was constitutionally protected expressive conduct. 406
F. Supp. 1381, 1386 (1976).
On appeal, the Supreme Court took a dramatically
different approach to the case. The Court "found it unnecessary
to pass on the `symbolic speech' issue," concluding that there
were "more appropriate First Amendment grounds" on which to
affirm the judgement of the district court. 430 U.S. at 713, 97
S. Ct. at 1434. The Court explained:
We turn instead to what in our view is the essence of
[the Maynards'] objection to the requirement that they
display the motto `Live Free or Die' on their
automobile license plates. . . . We are thus faced
with the question of whether the State may
constitutionally require an individual to participate
in the dissemination of an ideological message by
displaying it on his private property in a manner and
for the express purpose that it be observed and read by
the public. We hold that the State may not do so.
Id., 97 S. Ct. at 1434-35 (emphasis supplied).
While the Court did not expressly rule that the
Maynards had no viable symbolic protest claim, its opinion cast
grave doubt on the prospects of that argument. As then-Justice
Rehnquist interpreted the majority opinion, "the Court[]
26
implicit[ly] recogni[zed] that there is no protected `symbolic
speech' in this case . . . ." Id. at 720, 97 S. Ct. at 1438
(Rehnquist, J., dissenting). Of particular note is the
majority's assertion that had the state granted the Maynards'
request for special license plates not containing the state
motto, the act of displaying them would not be "sufficiently
communicative to sustain a claim of symbolic expression."
Id. at
713 n.10, 97 S. Ct. at 1434 n.10. This observation alone could be
virtually dispositive of Troster's symbolic protest claim.
The Court stated in Wooley that the display of a
license plate without the state motto would not amount to
constitutionally protected expressive conduct, see id. at 713
n.10, 97 S. Ct. at 1434 n.10, even though most other cars
displayed plates with the motto, and even though "New Hampshire
citizens [were] generally aware that individuals like the
plaintiffs ha[d] been covering the `Live Free or Die' on their
license plates in order to express their opposition to the
motto's implication that political freedom is the greatest good,"
see 406 F. Supp. at 1387 n.11. Similarly, since Troster opposes
the flag patch regulation because he believes that it coerces him
to engage in "speech" (actually, expressive conduct), we believe
that his conduct in wearing his correctional officer's uniform
without the flag patch, which is required and is in fact worn by
all the other guards, would not be protected symbolic speech even
if, as he argued before the district court, his contemporaneous
and repeated explanations would insure that observers would
likely understand the reason for his refusal.
27
In reaching this conclusion, we note that the Supreme
Court in Wooley did not contest the evidence and the district
court's conclusion, see id., that the people of New Hampshire
would most likely understand the significance of the Maynards'
acts. Rather, the Court concluded that the act of displaying
"expurgated plates" would not "sustain a claim of symbolic
expression." 430 U.S. at 713 n.10, 97 S. Ct. at 1434 n.10
(emphasis supplied). The fair implication of this is that
certain conduct might be expressive in fact yet not protected by
the First Amendment as symbolic expression.
In determining that Troster's conduct falls into this
category, we emphasize that the Supreme Court focused on what it
termed "the essence" of the Wooley's constitutional claim against
the anti-defacement statute. The basis of the Maynards' claim
was, constitutionally speaking, not that the law in question
prohibited them from "communicat[ing] affirmative opposition to
the motto." Id. Rather, the essence of their constitutional
objection was that the State was requiring individuals to help
disseminate an ideological message by displaying it on their
private property. See
id., 97 S. Ct. at 1434-35. This is not a
symbolic protest issue, but a compelled expression issue, which
is how the Court treated it.
Coming full circle, we believe that, as a matter of
law, the essence of Troster's objection to the flag patch
regulation is not that it limits his ability to protest being
used as a governmental mouthpiece. Rather, the essence of his
claim is reflected by the stated reason for his protest: Troster
28
believes that the regulation in question unconstitutionally
requires him to engage in expressive conduct in violation of his
First Amendment rights. This is a colorable compelled expression
claim, and that is how we have analyzed his constitutional
challenge to the Department's regulation in Part III supra.
In sum, because the message Troster wishes to
communicate is simply opposition to the Department's flag patch
regulation on compelled expression grounds, and because his
preferred method of communicating this message is violation of
the regulation, compelled speech analysis is the proper vehicle
for his constitutional challenge. Since we have rejected that
claim, the order of the district court denying Troster's motion
for a preliminary injunction will be affirmed.
The injunction we granted Troster pending this appeal
will be vacated. Parties to bear their own costs.
29
