In Spence v. Washington, the Supreme Court devised a two-part test for determining whether a nonverbal action is expressive conduct protected by the First Amendment. According to the Spence test, a nonverbal action is expressive if and only if: (1) it is intended to communicate a particularized message; and (2) in the circumstances in which the action is performed, the likelihood is great that the message will be understood by observers.
In subsequent cases, however, the Court has made clear that the category of “expressive conduct” embraces a much wider variety of nonverbal behaviors than a literal reading of the Spence test would suggest. It includes, for example, such behaviors as composing instrumental music, creating nonrepresentational visual artworks, penning nonsense verse, and dancing in the nude for the entertainment of others.
Drawing on the work of Paul Grice, one of the twentieth century’s most influential philosophers of language, this Comment develops a two-part expressive conduct test that captures the expressive character of this wider variety of behaviors. It shows that the Gricean test displays striking consistency with the Supreme Court’s particularized judgments about which sorts of nonverbal conduct are expressive and which sorts are not.