Original Spence Test and as Later Modified by Hurley

1. Original Spence Test (from Spence v. Washington (1974))

To be symbolic speech under the Spence test:
1) The conduct must be intended to convey a particularized message; and
2) The likelihood must be great, in the surrounding circumstances, that the message would be understood by those who viewed it.

2. Spence Test (as modified by Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995))

To be symbolic speech under the Spence test as modified by Hurley, conduct must:

(1) be intended to communicate a message (eliminating the requirement that the message must be particularized; the message now can be a general one and not a specific one: "a narrow, succinctly articulable message is not a condition of constitutional protection"); and

(2) be likely, in the circumstances, to be understood by its intended audience.

The specific language from Spence v. Washington, 418 U.S. 405 (1974), is as follows: "An 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." However, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), modified the Spence "particularized message requirement." In Hurley, the Court stated:

The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), id. at 632, 642, wearing an arm band to protest a war, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 -506 (1969), displaying a red flag, Stromberg v. California, 283 U.S. 359, 369 (1931), and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). As some of these examples show, 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 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.