Troster v. PA State Dept Corr

• Court: Court of Appeals for the Third Circuit
• Decided: September 13, 1995
• Docket: 94-3162
• Status: Unknown

Opinion

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Troster v PA State Dept Corr Precedential or Non-Precedential: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

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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

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

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.