1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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1 

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
2 

 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 
3 

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 
4 

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 
5 

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 
6 

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 statecoerced 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 
7 

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 
8 

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. 
9 

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 
10 

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 

 

0Spence, 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. 
11 

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 
12 

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 

 

0Although 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. 
13 

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). 
14 

 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

 

0We 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)). 

0From 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 
15 

 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. 
16 

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 
17 

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 

 

0Technically 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. 
18 

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 

 

0In 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). 
19 

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) 
20 

(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

 

0Limited 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 
21 

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. 
22 

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 
23 

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 
24 

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 

 

0This 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. 
25 

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 

 

0Indeed, 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. 
26 

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[] 
27 

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. 
28 

 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 
29 

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.