In the 

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-2183 

THE BAIL PROJECT, INC., 

Plaintiff-Appellant, 

v.

COMMISSIONER, INDIANA DEPARTMENT OF INSURANCE, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division. 

No. 1:22-cv-00862-JPH-MJD — James Patrick Hanlon, Judge. 

____________________ 

ARGUED DECEMBER 7, 2022 — DECIDED AUGUST 3, 2023

____________________ 

Before FLAUM, KIRSCH, and JACKSON-AKIWUMI, Circuit 

Judges. 

KIRSCH, Circuit Judge. The Bail Project, Inc., is a nonprofit 

organization that advocates for the abolition of cash bail. At 

the core of its advocacy, the organization pays cash bail for 

thousands of individuals across the country. Its aim is to show

that conditioning a pretrial defendant’s release upon the payment of money is not necessary to secure appearances at future court dates. In response to The Bail Project’s efforts in 
2 No. 22-2183 

Indiana, the legislature passed, and the governor signed into 

law, House Enrolled Act 1300. The law requires charitable 

bail organizations like The Bail Project to register with the 

State. It also limits for whom such organizations can pay cash 

bail. The Bail Project sued in federal court and requested a 

preliminary injunction to enjoin the Commissioner of Indiana’s Department of Insurance from enforcing the law. It argued that HEA 1300 (which had not yet gone into effect)

would violate its First Amendment right to free speech and 

its Fourteenth Amendment right to equal protection. The district court declined to issue an injunction after concluding that 

The Bail Project had not shown a likelihood of success on the 

merits. 

The principal question on appeal is whether the conduct 

HEA 1300 regulates—the payment of cash bail—is protected 

by the First Amendment. We hold that it is not. Although The 

Bail Project pays cash bail for pretrial defendants with the intent to communicate its message and to further its advocacy, 

a reasonable observer would not understand the conduct itself as communicating any message without additional explanatory speech. Thus, paying cash bail is not inherently expressive conduct, and HEA 1300 does not implicate the First 

Amendment. We also conclude that the law does not violate 

the Equal Protection Clause because it is rationally related to 

the State’s legitimate interest in regulating pretrial detention 

of criminal defendants. Because The Bail Project has not 

shown a likelihood of success on the merits of either claim, we 

affirm the district court’s denial of a preliminary injunction. 
No. 22-2183 3 

I 

A 

Indiana “strongly encourages pretrial release for many accused individuals awaiting trial.” DeWees v. State, 180 N.E.3d 

261, 268 (Ind. 2022) (citing Ind. R. Crim. P. 26). If a defendant 

does not present a “substantial risk of flight or danger” to others, then the trial court must “consider releasing the arrestee 

without money bail or surety,” subject to any reasonable conditions deemed appropriate by the court. Ind. Code § 35-33-

8-3.8(b). But if a court finds that a defendant poses a risk of 

flight or a danger to the community, then it has “broad discretion” to set bail and other conditions of release. DeWees, 180 

N.E.3d at 266–68; see also Ind. Code §§ 35-33-8-3.8, 35-33-8-

4(b); Ind. R. Crim. P. 26. Bail may not be set any higher than 

“reasonably required to assure the defendant’s appearance in 

court” or “to assure the physical safety of another person or 

the community[.]” Ind. Code § 35-33-8-4(b). 

There are two primary ways a defendant can make bail in 

Indiana. One is a surety bond. Id. § 35-33-8-3.2(a)(1)(A). A 

surety bond is, in essence, an insurance arrangement where 

someone pays a non-refundable, partial amount of the bail 

(usually about ten percent) to a licensed bail-bond agent, who

then presents proof of an insurance policy for the entire bail

amount to the county clerk. With minimal exceptions, only licensed bail agents may post surety bonds in Indiana. See id. 

§ 27-10-3-1. 

The second option is cash bail, which requires full payment of the bail amount to the county clerk. Id. § 35-33-8-

3.2(a)(1)(B). If the defendant appears at all subsequent court 

proceedings, the funds are returned at the conclusion of the 
4 No. 22-2183 

case to whoever made the deposit. See Garner v. Kempf, 93 

N.E.3d 1091, 1097–98 (Ind. 2018). If the defendant fails to appear, then the entirety of the cash bail may be forfeited. See 

Ind. Code § 35-33-8-7. Before HEA 1300, Indiana law placed 

no limit on who could pay cash bail for any pretrial defendant

eligible for release. 

B 

Enter The Bail Project, Inc.—a nonprofit corporation dedicated to ending cash bail and other policies that condition a 

defendant’s pretrial release upon the payment of money. The 

organization believes that cash bail has a corrosive effect because it forces indigent and low-income defendants to needlessly remain in jail simply because they can’t afford to pay. 

At the center of its campaign, The Bail Project pays cash 

bail in full for its clients. The goal is to demonstrate that paying cash bail is unnecessary to ensure pretrial defendants’ appearances at future court dates. The organization keeps a revolving bail fund that both pays for a client’s bail and receives 

refunded bail deposits if the client makes all required court 

appearances. Once The Bail Project decides to pay bail for a 

client, it develops an individualized post-release support plan 

to help the client make it to future court dates. In total, the 

organization has provided bail assistance for more than 

22,000 individuals across 20 states. According to The Bail Project, its clients have a 92% appearance rate, so the overwhelming amount of bail money it has posted has been returned to 

its revolving fund. 

The Bail Project considers multiple factors when selecting 

its clients, but it does not rule out candidates based on the 

crime an individual is charged with. The organization 
No. 22-2183 5 

therefore pays bail for defendants charged with a variety of 

crimes, including serious and violent crimes. The Bail Project 

believes that it is especially important to pay bail for persons 

charged with (or previously convicted of) serious offenses because doing so “most effectively demonstrates the fallacy of 

requiring the payment of cash bail.” 

The Bail Project’s ultimate goal is to inspire systemic reforms to eliminate cash bail by showing that it is unnecessary. 

The organization advances its message in many ways, including on its website, which states: “[W]e believe that ending 

cash bail is one of the defining civil rights and racial justice 

issues of our day. Through our efforts, we seek to eliminate 

cash bail and ultimately put ourselves out of business.” Although the organization’s advocacy includes both speech and 

conduct, The Bail Project views the act of paying cash bail as 

its essential expressive activity. 

C 

The Bail Project began operating in Indiana in 2018 and 

has assisted approximately 1,000 pretrial defendants in Marion County and Lake County. Its clients in Indiana include 

those who have been charged with, or previously convicted 

of, offenses that qualify as crimes of violence under state law.

See Ind. Code § 35-50-1-2(a). To pay bail for its clients in Indiana, The Bail Project sends an employee to the relevant county 

clerk’s office to pay the cash deposit and complete the required paperwork. The only observers of The Bail Project’s 

bail payments are the county clerk’s office employees and bystanders who happen to be in the office. 

In response to The Bail Project’s efforts, Indiana enacted

HEA 1300. See 2022 Ind. Leg. Serv. P.L. 147-2022, codified at 
6 No. 22-2183 

Ind. Code §§ 27-10-2-4.1, et seq. HEA 1300 requires the Commissioner of Indiana’s Department of Insurance to regulate

charitable bail organizations. Ind. Code § 27-10-2-4.1. It defines “charitable bail organization” to mean “a business entity, or a nonprofit organization ... that exists for the purpose 

of paying cash bail for another person[,]” with some exceptions that have no application here. Id. § 27-10-2-4.5(a). 

Under HEA 1300, charitable bail organizations must receive certification from the Commissioner to operate in Indiana. Id. § 27-10-2-4.5(b), (g)(1). The Commissioner has discretion to certify a charitable bail organization if it: (1) is a business entity or nonprofit organization under the Internal Revenue Code or Indiana law; (2) is currently registered to do 

business in Indiana; (3) is located in Indiana; and (4) “exists 

for the purpose of depositing cash bail for an indigent defendant who: (A) is not charged with a crime of violence; or (B) if 

charged with a felony, does not have a prior conviction for a 

crime of violence.” Id. § 27-10-2-4.5(b)(1)–(4). Once certified, 

charitable bail organizations are prohibited from paying bail 

for defendants who are either (1) charged with a crime of violence, or (2) charged with a felony and have a previous conviction for a crime of violence. Id. § 27-10-2-4.5(g)(2)(A)–(B). 

The law requires the Commissioner to “deny, suspend, revoke, or refuse to renew certification” for, among other 

things, “[a]ny cause for which issuance of the certification 

could have been refused had it then existed and been known 

to the commissioner.” Id. § 27-10-2-4.5(f)(1).

D 

Before HEA 1300 went into effect, The Bail Project sued the 

Commissioner in federal court, alleging that the law would 

violate its rights under the First Amendment’s Free Speech 
No. 22-2183 7 

Clause and the Fourteenth Amendment’s Equal Protection 

Clause. The Bail Project moved for a preliminary injunction 

under Federal Rule of Civil Procedure 65, seeking to enjoin 

the Commissioner from enforcing HEA 1300 against it. The 

district court concluded that The Bail Project had failed to 

show a likelihood of success on the merits of either claim and 

denied the motion. 

II

We review the district court’s decision to deny a preliminary injunction for abuse of discretion. Life Spine, Inc. v. Aegis 

Spine, Inc., 8 F.4th 531, 539 (7th Cir. 2021). We review the district court’s factual findings for clear error, its legal conclusions de novo, and its balancing of the factors for a preliminary injunction for abuse of discretion. D.U. v. Rhoades, 825 

F.3d 331, 335 (7th Cir. 2016). An exercise of discretion based 

on a legal error is an abuse of discretion. Common Cause Ind. v. 

Lawson, 978 F.3d 1036, 1039 (7th Cir. 2020). But absent an error 

of fact or law, we afford a district court’s decision to grant or 

deny an injunction “great deference.” Speech First, Inc. v. 

Killeen, 968 F.3d 628, 638 (7th Cir. 2020). 

A 

A preliminary injunction provides an extraordinary form 

of relief, available only when a party makes a clear showing 

that the case demands it. See Orr v. Shicker, 953 F.3d 490, 501–

02 (7th Cir. 2020). “As a threshold matter, a party seeking a 

preliminary injunction must demonstrate (1) some likelihood 

of succeeding on the merits, and (2) that it has ‘no adequate 

remedy at law’ and will suffer ‘irreparable harm’ if preliminary relief is denied.” Cassell v. Snyders, 990 F.3d 539, 544–45 

(7th Cir. 2021) (quoting Abbott Lab’ys. v. Mead Johnson & Co., 
8 No. 22-2183 

971 F.2d 6, 11 (7th Cir. 1992)). If a plaintiff makes such a showing, the court then weighs the relative harm the parties will 

suffer with or without an injunction and considers whether 

an injunction is in the public interest. Courthouse News Serv. v. 

Brown, 908 F.3d 1063, 1068 (7th Cir. 2018). But if a party fails 

to show a likelihood of success on the merits, the court need 

not address the remaining preliminary injunction elements. 

See Lukaszczyk v. Cook County, 47 F.4th 587, 598 (7th Cir. 2022). 

B 

The First Amendment’s Free Speech Clause, applicable to 

the states through the Fourteenth Amendment, extends to 

both “symbolic or expressive conduct as well as to actual 

speech.” Virginia v. Black, 538 U.S. 343, 358 (2003); see also 

Stromberg v. California, 283 U.S. 359 (1931); Gitlow v. New York,

268 U.S. 652 (1925) (incorporating the First Amendment right 

to free speech against the states). But the First Amendment 

protects conduct only when it is “inherently expressive.” 

Rumsfeld v. F. for Acad. & Inst. Rts., Inc., 547 U.S. 47, 66 (2006). 

To be inherently expressive, “the conduct in question must 

comprehensively communicate its own message without additional speech.” Tagami v. City of Chicago, 875 F.3d 375, 378 

(7th Cir. 2017). That is, “the conduct itself must convey a message that can be readily ‘understood by those who view[ ] it.’”

Id. at 378 (alteration in original) (quoting Texas v. Johnson, 491 

U.S. 397, 404 (1989)). Otherwise, “an apparently limitless variety of conduct [could] be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an 

idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968). Examples of inherently expressive conduct include burning the 

American flag at a protest, Johnson, 491 U.S. at 406, burning a 

cross, Black, 538 U.S. at 360–61, 363, saluting a flag (and 
No. 22-2183 9 

refusing to do so), W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 

632 (1943), wearing an armband to protest war, Tinker v. Des 

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505–506 (1969), 

displaying a flag opposing the government, Stromberg, 283 

U.S. at 369–70, and nude dancing as entertainment, Barnes v. 

Glen Theatre, Inc., 501 U.S. 560, 565–66 (1991). 

Conduct that does not convey a message without the aid 

of additional speech, however, receives no First Amendment 

protection. In Rumsfeld v. Forum for Academic & Institutional 

Rights, Inc., 547 U.S. 47 (2006), the Supreme Court held that 

conduct aimed at expressing disagreement with a government policy was not entitled to First Amendment protection

when the conduct itself failed to convey any message. Id. at 

66. The Forum for Academic and Institutional Rights, an association of law schools and law faculties, restricted military 

recruiters’ access at law schools to protest sexual orientation 

discrimination in the military under a now-repealed government policy commonly known as “Don’t Ask, Don’t Tell,” 10 

U.S.C. § 654, Repealed Pub. L. 111-321, § 2(f)(1)(A), Dec. 22, 

2010, 124 Stat. 3516. Congress responded by passing the Solomon Amendment, 10 U.S.C. § 983, which denied federal funding to higher learning institutions if any part of the institution

refused to give military recruiters the same access to campus

as other recruiters. The Forum sought a preliminary injunction, arguing that the Solomon Amendment unconstitutionally forced law schools to either forgo exercising their First 

Amendment rights (to decide whether to accommodate a military recruiter’s message) or risk losing federal funding for 

their entire universities. Rumsfeld, 547 U.S. at 66. 

The Court held that the First Amendment did not apply to 

the Forum’s conduct because the “conduct regulated by the 
10 No. 22-2183 

Solomon Amendment is not inherently expressive.” Id. at 66. 

Although the “law schools ‘expressed’ their disagreement 

with the military by treating military recruiters differently 

from other recruiters[,]” that action was “expressive only because the law schools accompanied their conduct with speech 

explaining it.” Id. The point of requiring military interviews 

to be conducted away from law schools, the Court reasoned,

was not “overwhelmingly apparent[,]” and “[a]n observer 

who sees military recruiters interviewing away from the law 

school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s 

interview rooms are full, or the military recruiters decided for 

reasons of their own that they would rather interview someplace else.” Id. The necessity of explanatory speech to convey 

a message, moreover, was “strong evidence that the conduct 

at issue ... is not so inherently expressive that it warrants 

[First Amendment] protection[.]” Id. Combining speech and 

conduct is not enough, the Court said, because then “a regulated party could always transform conduct into ‘speech’ 

simply by talking about it.” Id. 

We applied Rumsfeld to assess another combination of 

speech and conduct in Tagami v. City of Chicago, 875 F.3d 375 

(7th Cir. 2017). There, the plaintiff walked around Chicago naked from the waist up on “GoTopless Day” to protest laws 

that prevent women from doing so. Id. at 377. After she received a ticket for violating Chicago’s public indecency ordinance, she sued the City, claiming that the ordinance violated 

the First Amendment. Id. We held that the ordinance regulated conduct that the First Amendment did not reach. Id. at 

378. Regardless of the plaintiff’s subjective intent, we concluded that her “public nudity did not itself communicate a 

message of political protest.” Id. Although she went topless in 
No. 22-2183 11 

the context of a public protest while simultaneously expressing views opposing the policy, we held that the conduct itself

did not “comprehensively communicate its own message 

without additional speech.” Id. While acknowledging that the 

First Amendment protects conduct when the “expressive, 

overtly political nature of th[e] conduct was both intentional 

and overwhelmingly apparent[,]’’ id. (quoting Johnson, 491 

U.S. at 406), we concluded that it was not “overwhelmingly 

apparent” to onlookers “that a woman’s act of baring her 

breasts in public expresses a political message[,]” id.

C 

Against this backdrop, we consider whether the First 

Amendment protects the payment of cash bail. The Bail Project argues that its payment of bail is inherently expressive 

conduct because (1) the organization intends to convey a message through bail payments, and (2) when viewed in context, 

a reasonable observer would understand its payment as communicative. The Bail Project insists that even without 

knowledge of its mission, clerk’s office employees and Indiana judges know that it is paying bail to express something. 

In our view, The Bail Project’s act of paying cash bail does 

not inherently express any message. On its own, paying bail 

for a pretrial defendant does not communicate even the most 

general version of The Bail Project’s message—its opposition 

to cash bail. Without knowledge of The Bail Project’s mission 

and repeat-player status, a reasonable observer would not understand its payment of cash bail at the clerk’s office as an expression of any message about the bail system. A person 

could be paying bail to secure a loved one’s freedom pending 

trial, or they could be performing a purely charitable act to 

help an indigent defendant. But whatever their motivation for 
12 No. 22-2183 

doing so, the point is that nothing about the act itself inherently expresses any view on the merits of the bail system. Because the conduct itself does not convey a message that “can 

be readily ‘understood by those who view[ ] it,’” the First 

Amendment does not protect the conduct HEA 1300 regulates. Tagami, 875 F.3d at 378 (alteration in original) (quoting 

Johnson, 491 U.S. at 404). 

The Bail Project says that its message comes through when 

coupled with speech explaining its efforts. The organization 

further argues that we must consider whether a reasonable 

observer who is aware of The Bail Project and knows its mission would perceive its payment of bail as expressive. But

courts do not assume that an observer has foreknowledge of 

an actor’s intentions when assessing whether conduct itself is 

intrinsically expressive. See Rumsfeld, 547 U.S. at 66. And here, 

without awareness of The Bail Project and its mission—presumably gleaned from the organization’s website or other 

speech explaining its efforts—a reasonable person witnessing 

an employee from The Bail Project paying cash bail would not 

detect any message from the act itself. This further demonstrates that paying bail is not inherently expressive. 

We do not doubt The Bail Project’s intention to communicate its message through the payment of bail for clients. But 

subjective intent is not enough. See O'Brien, 391 U.S. at 376. 

Cash bail is a debated issue, and The Bail Project wishes to 

advance its position through both speech and action. Of 

course, the same was true of “Don’t Ask, Don’t Tell” and the 

Forum’s efforts to protest the military. Yet the combination of 

speech and conduct aimed at protesting a particular policy 

does not trigger First Amendment protection for conduct that 

is not itself inherently expressive. That is why the First 
No. 22-2183 13 

Amendment provides no shield to the individual who intends 

to protest the IRS by refusing to pay his taxes, Rumsfeld, 547 

U.S. at 66, nor does it allow a protestor to evade travel restrictions because he seeks to protest government action in a 

warzone, see Clancy v. Off. of Foreign Assets Control of U.S. 

Dep’t of Treasury, 559 F.3d 595, 605 (7th Cir. 2009) (holding that 

that a person’s travel to protest the Iraq War was not inherently expressive conduct). The throughline in all of these scenarios is that no reasonable observer could decipher a message from the conduct itself without some explanatory 

speech. So too here. The Bail Project’s speech makes clear that 

its payment of bail is meant as an act of protest. But the payment of bail itself—like the displacement of military recruiters 

on campus, the refusal to pay taxes, or travel to a foreign war 

zone—does not communicate a message of protest.

We also reject the notion that Indiana’s legislative response to The Bail Project’s efforts suggests anything about 

the expressiveness of paying cash bail. The dissent views

HEA 1300 as proof that the Indiana legislature was perhaps 

the most relevant observer of The Bail Project’s conduct. That

far-reaching view of a reasonable observer—to include legislative bodies not present when the conduct occurs but aware 

of it after-the-fact and in the aggregate—cannot be squared 

with Rumsfeld. Congress’s legislative response neither made 

it an observer of the Forum’s conduct nor factored into the

Court’s analysis of the conduct’s expressiveness. So too here. 

Cf. Int’l Ass’n of Fire Fighters, Loc. 365 v. City of East Chicago, 56 

F.4th 437, 454 (7th Cir. 2022) (Easterbrook, J., concurring) 

(“The Supreme Court has never held that a policy that harms 

the losers in a political contest can be enjoined as a penalty for 

speech.”). 
14 No. 22-2183 

Because we conclude that the payment of cash bail is not 

entitled to First Amendment protection, we do not consider

the parties’ additional arguments regarding whether 

HEA 1300 survives intermediate or strict scrutiny, or whether 

it vests too much discretion in the Commissioner. The Bail 

Project has not shown a likelihood of success on the merits of 

its First Amendment claim, so we affirm the district court’s 

denial of a preliminary injunction. 

III

Turning to the equal protection challenge, The Bail Project 

argues that HEA 1300 establishes two classes of bail payors: 

(1) charitable bail organizations, and (2) everyone else. The 

law prohibits only the former from paying bail for persons 

accused of crimes of violence or who are charged with felonies and have a past conviction for a crime of violence. The 

Bail Project contends that this distinction violates the Fourteenth Amendment because it does not rationally advance a 

legitimate government interest.

The parties agree that The Bail Project is not a member of 

a suspect class and no fundamental rights are at stake, so rational basis review applies. Our review is highly deferential—

“it is enough for the state actor to show a rational basis for the 

classification.” Ostrowski v. Lake County, 33 F.4th 960, 966 (7th 

Cir. 2022). Under rational basis review, a state policy “that 

treats two groups of people differently will pass muster so 

long as there is some rational relationship between the disparity of treatment and some legitimate governmental purpose.” 

Id. (cleaned up). To succeed in challenging HEA 1300, The 

Bail Project “must ‘negat[e] every conceivable basis’ that 

might support the challenged law, and ‘it is entirely irrelevant 

... whether the conceived reason for the challenged distinction 
No. 22-2183 15 

actually motivated the legislature.’” Monarch Beverage Co. v. 

Cook, 861 F.3d 678, 681 (7th Cir. 2017) (quoting FCC v. Beach 

Commc'ns, Inc., 508 U.S. 307, 314–15 (1993)). 

The Bail Project has not shown that HEA 1300 is irrational. 

Indiana has a legitimate interest in regulating its pretrial detention and bail system, and HEA 1300’s regulatory scheme is 

rationally related to that interest. The legislature could have 

determined that charitable bail organizations have different 

incentives, resources, and ties to the community than other 

bail payors, and therefore, that it was appropriate to treat 

them differently than bail payors who risk their own money 

and weigh their own safety to bail out a defendant. Perhaps 

this is bad policy, perhaps not. That is not for us to say. Tully 

v. Okeson, 977 F.3d 608, 616 (7th Cir. 2020) (“[R]ational-basis 

review is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” (citation and quotation 

marks omitted)). It is enough for us to determine that 

HEA 1300 is rationally related to Indiana’s legitimate interest 

in administering its pretrial bail system. 

As with the First Amendment claim, The Bail Project has 

failed to show a likelihood of success on the merits under the

Equal Protection Clause. We therefore do not consider the remaining preliminary injunction elements. See Doe v. Univ. of 

S. Ind., 43 F.4th 784, 791 (7th Cir. 2022). 

IV

In sum, The Bail Project’s payment of bail is not inherently 

expressive conduct, and the distinctions HEA 1300 draws between charitable bail organizations and other bail payors is 

rationally tied to Indiana’s legitimate interest in regulating its 

pretrial detention system. Accordingly, The Bail Project has 
16 No. 22-2183 

not demonstrated a likelihood of success in its constitutional

challenge to HEA 1300, and we affirm the district court’s denial of a preliminary injunction. 

AFFIRMED
No. 22-2183 17 

JACKSON-AKIWUMI, Circuit Judge, dissenting. The First 

Amendment’s protection of speech extends to conduct that is 

“inherently expressive.” Rumsfeld v. F. for Acad. & Inst. Rts., 

Inc., 547 U.S. 47, 66 (2006). Texas v. Johnson—the Supreme 

Court’s landmark decision that held the First Amendment 

protects the act of burning an American flag during a protest—is a well-known case demonstrating the concept of inherently expressive conduct, and the majority opinion rightly 

cites to it. 491 U.S. 397, 406 (1989). 

However, as Texas v. Johnson demonstrates, the Supreme 

Court decision that established the underlying test for analyzing whether conduct is “inherently expressive”—a phrase not 

coined until Rumsfeld—was Spence v. State of Washington, 418 

U.S. 405 (1974). Spence held that, to determine whether conduct “possesses sufficient communicative elements to bring 

the First Amendment into play,” courts must ask whether (1) 

“[a]n intent to convey a particularized message was present,” 

and (2) “the likelihood was great that the message would be 

understood by those who viewed [the conduct].” Johnson, 491 

U.S. at 404 (quoting Spence, 418 U.S. at 410–11). 

These are the questions the majority opinion considers, ultimately answering no. See supra at 8–9, 11. But based on the 

facts before us, I reach the opposite legal conclusion: The Bail 

Project’s conduct is indeed expressive because the organization intends to convey a particularized message (the parties 

do not dispute this), and not only was the likelihood great that 

those who viewed the conduct would understand that the organization intended to convey a message, the record shows 

that those who viewed the conduct did understand as much. I 

therefore respectfully dissent.
18 No. 22-2183

I 

Context matters when evaluating whether conduct is protected by the First Amendment. In Spence, the Supreme Court 

held that the nature of a speaker’s “activity, combined with the 

factual context and environment in which it was undertaken,” informs whether the speaker engaged in a type of protected expression. 418 U.S. at 410 (emphasis added). In short, context 

informs the answer to the two questions posed by the Spence

test—was there an intent to convey a particularized message, 

and was the likelihood great the message would be understood by those who viewed the conduct? And a component of 

context is the relevant audience or observer—as Spence puts 

it, “those who viewed [the conduct].” Id. at 411. 

Spence featured an appellant who flew the American flag 

upside down with a peace symbol affixed. The year was 1970, 

so the appellant’s conduct “was roughly simultaneous with 

and concededly triggered by the Cambodian incursion and 

the Kent State tragedy,” both, the Court said, “issues of great 

public moment.” Id. at 410. When deciding the case four years 

later, the Court noted that if someone engaged in that same 

conduct today (as in 1974), it “might be interpreted as nothing 

more than bizarre behavior, but it would have been difficult 

for the great majority of citizens to miss the drift of appellant’s 

point at the time that he made it.” Id. The relevant audience—

in Spence’s case, citizens who the Court assumed had some 

understanding of current events during the early 1970s—was 

a part of the “factual context and environment” that informed 

the Court’s decision about whether the appellant’s activity 

was protected expression. Id. 

Supreme Court cases both before and after Spence similarly demonstrate the importance of considering context, 
No. 22-2183 19 

including audience. In Tinker v. Des Moines Independent Community School District, students wore black armbands to 

school. 393 U.S. 503 (1969). In a silo, there is nothing inherently expressive about a strip of black cloth; it could represent 

a teen fashion choice or support for a sports team, for example. But in the context of Tinker, after the school principals 

“became aware of the [students’] plan to wear armbands” to 

protest the Vietnam War, they quickly adopted a policy prohibiting the conduct. Id. at 504. Tinker preceded Spence by five 

years but nonetheless implicitly illustrates how surrounding 

context—including the relevant audience—is crucial to the 

analysis of whether conduct is inherently expressive. The war 

coupled with the audience’s awareness of the students’ 

planned protest imbued the conduct with expressive elements. 

The lesson that context, including audience, matters is also 

evident in Texas v. Johnson. The appellant burned an “American flag as part—indeed, as the culmination—of a political 

demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for 

President.” Johnson, 491 U.S. at 406. The Court did “not automatically conclude[] . . . that any action taken with respect to 

our flag is expressive;” rather, it found that the “expressive, 

overtly political nature of [the appellant’s] conduct was . . . 

overwhelmingly apparent” because of the surrounding context described above. Id. at 405–06. Had the appellant hypothetically burned the American flag on a cold night in Central 

Park, a foreign tourist unfamiliar with the tradition of burning 

the American flag in protest could interpret the conduct as an 

effort to keep warm. The “context in which it occurred”—not 

the flag burning alone—made plain the political nature of the 
20 No. 22-2183

appellant’s conduct and led to First Amendment protection. 

Id. at 405. 

A final example is Virginia v. Black, which offers an extensive history on cross burnings. The Court recognized that “a 

burning cross does not inevitably convey a message of intimidation.” 538 U.S. 343, 357 (2003). In fact, the Court noted, 

from the Ku Klux Klan’s founding in 1866 until approximately 1915, the group did not even use cross burnings to 

convey a message. Id. at 352–54. Since then, however, the 

group has used cross burnings “to communicate both threats 

of violence and messages of shared ideology” to the American 

people, who well understand the historical context for the 

Klan’s conduct. Id. at 354. 

In addition to Virginia v. Black, Texas v. Johnson, and Tinker, 

the majority opinion cites other examples of conduct the Supreme Court has recognized as inherently expressive. See supra at 8–9 (citing cases involving saluting or refusing to salute 

the flag, displaying a flag in opposition to the government, 

and nude dancing as entertainment). Each of these cases, even 

those that predate Spence, demonstrates the importance of analyzing context, including the relevant audience. 

In short, any analysis of whether a message delivered 

through conduct alone would be understood “by those who 

viewed it” is incomplete if a court does not consider what 

Spence refers to as the “factual context and environment.” 418 

U.S. at 410. Decades of Supreme Court precedent shows that 

context is key, and audience matters. 
No. 22-2183 21 

II

In my view, the majority opinion does not properly consider context and audience when asking whether observers of 

The Bail Project’s conduct understand—without the assistance of explanatory speech—that a message is being conveyed. 

The passage of House Enrolled Act 1300 confirms that the 

Indiana legislature was acutely aware of The Bail Project’s 

conduct and concomitant advocacy. After all, neither party 

disputes that the law was enacted in direct response to the 

organization’s efforts. See supra at 1–2, 5–6. The response was 

direct, and swift. As the majority opinion recounts, the legislature passed the law just four years after The Bail Project began operating in Indiana, by which time the organization had 

helped approximately 1,000 people in the state. Supra at 5. So 

when applying the Spence test, I see no reason to exclude the 

Indiana General Assembly from being characterized as an observer of The Bail Project’s conduct, right alongside judges, 

prosecutors, criminal defense attorneys, jail administrators, 

and court employees who process bail payments, among 

other observers. 

In fact, the Indiana General Assembly is arguably the most

relevant audience in this context. The Bail Project wants to 

eliminate cash bail in Indiana, and it is the state legislators 

who have the power to do so.1 The enactment of HEA 1300 

1 The majority opinion asserts that viewing the Indiana General Assembly as part of the relevant audience under the Spence test “cannot be 

squared with Rumsfeld.” Supra at 13. But Rumsfeld does not say who can 

and cannot be considered an “observer,” Rumsfeld, 547 U.S. at 66, or “reasonable onlooker,” Texas v. Johnson, 491 U.S. at 409, under the Spence test. 

Rather, the Court in Rumsfeld identified the relevant audience in that case 
22 No. 22-2183

itself supports a “likelihood,” Spence, 418 U.S. at 411, that 

some type of message related to The Bail Project’s conduct 

was conveyed to and received by the Indiana General Assembly. The fact that a receiver of the message reacted in a manner 

counter to that intended by the speaker (here, rather than 

eliminate cash bail for all, the legislature made it categorically 

unattainable for some) does not invalidate the expressive nature of the act. 

One should rightly ask: Was explanatory speech necessary 

for the Indiana General Assembly to understand that The Bail 

Project’s act of paying bail was communicative? Here, note 

that an observer need not understand the exact message, only 

that some type of message is being communicated: A “narrow, 

succinctly articulable message is not a condition of constitutional protection” for expressive conduct, for if it were, First 

Amendment protection “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold 

Schoenberg, or Jabberwocky verse of Lewis Carroll.” Hurley 

v. Irish-Am. Gay. Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 

569 (1995). 

as “an observer who sees military recruiters interviewing away from the 

law school” without going into any additional detail about who else could 

be included in this category. 547 U.S. at 66. 

The majority opinion’s reliance on the concurrence in International Association of Fire Fighters, Local 365 v. City of East Chicago, 56 F.4th 437 (7th 

Cir. 2022), see supra at 13, is also puzzling given that the case does not involve expressive conduct or even whether a particular message is speech. 

The case addresses First Amendment retaliation—a separate test and analysis altogether that applies only to speech. It contains no discussion of 

who can be deemed an observer of conduct for purposes of the Spence test.
No. 22-2183 23 

Based on this record, the answer is not complicated because we need only look at who the actor is: The Bail Project. 

It is no secret that an organization called The Bail Project is 

working on some type of project related to bail. Its mission is 

in the name and is relevant context for our analysis. Cf. Nat’l 

Ass’n for the Advancement of Colored People v. Button, 371 U.S. 

415, 429–30 (1963) (pointing, as context, to the objectives of the 

NAACP in concluding that its litigation activity is a form of 

political expression protected by the First Amendment). 

In deciding this question of whether explanatory speech 

was truly necessary, we cannot divorce conduct from context. 

If we do, then how can wearing a black armband, or burning 

a flag, or sitting at the front of a bus be deemed expressive 

conduct? It is context that turns these acts into a message—

into a form of protest. And it is context that turns the ordinary 

act of paying cash bail into expressive conduct. Here we have 

(1) an organization named The Bail Project, (2) whose representatives pay cash bail for various defendants, (3) at a time 

when, as the majority opinion acknowledges, “[c]ash bail is a 

debated issue,” supra at 12, and (4) the Indiana General Assembly, arguably the most relevant audience, has not only 

tuned into The Bail Project but also responded with pointed 

legislation to curb its activity. Spence requires us to analyze 

whether an “intent to convey a particularized message was 

present,” and if in the “surrounding circumstances[,] the likelihood was great that the message would be understood by 

those who viewed it.” Spence, 418 U.S. at 410–11. Under these 

circumstances, I do not see how The Bail Project’s conveyance 

of a message through conduct could be any clearer. 

One parting thought: Even if, as the majority insists, The 

Bail Project needed to use some explanatory speech to convey 
24 No. 22-2183

its message, the Supreme Court in Rumsfeld held that the necessity of explanatory speech is “strong evidence that the conduct . . . is not so inherently expressive” as to warrant First 

Amendment protection. Rumsfeld, 547 U.S at 66 (emphasis 

added). The Court did not say it was totally dispositive. 

III 

Analyzing the context surrounding conduct is crucial to 

determining whether that conduct is inherently expressive 

and therefore eligible for protection under the First Amendment. I believe the majority opinion’s approach is too limited. 

When considering the context—including the relevant audience—of The Bail Project’s actions, I see a high likelihood that 

those who observed the conduct understood that some type 

of message was being conveyed. I would remand to the district court for further proceedings on whether The Bail Project 

has a likelihood of success on the merits for preliminary injunction purposes. I respectfully dissent.