OPINION OF THE COURT
Appellant Dieter Troster, an employee of the State Correctional Institution at Greens-burg, 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. Rosem-eyer, seeking injunctive and declaratory relief under 42 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 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 II 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,
— U.S. -, -,
With respect to the alternative symbolic protest theory, we conclude in Part III 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. Ac
1. Facts and Prooedural 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 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 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 or face disciplinary proceedings. Troster continued to refuse to wear the flag, and on January 26 he filed this 42 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.
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 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.,
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.,
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 activityf,].... 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,
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
Whether or not this reading of
Spence
was justified,
1
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,
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,
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.
The conduct required of Troster bears a slightly greater resemblance to that demanded of the plaintiff in
Lipp v. Morris,
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.
3
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,
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 1094-96, the Supreme Court has eautioned 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,
c.
In short, Troster has not at this time met his burden. The district court’s factual conclusion that “[wjearing the flag 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
Our narrow conclusion does not ignore the Supreme Court’s historical solicitude for free speech claims, its high regard for a “preferred right[ ],”
see, e.g., Smith v. People,
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 conduct, even conduct involving the flag of the United States, is “expressive” for purposes of the First Amendment.
See Texas v. Johnson,
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,
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. 7 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,
b.
This holding does not require us to reject the reasoning of
Leonard v. City of Columbus,
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
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 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 free speech objection should accordingly be subject only to compelled expression analysis. 8
Similarly, the symbolic protest claim in
Spence v. Washington,
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,
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.
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.,
While the Court did not expressly rule that the Maynards had no viable symbolic protest claim, its opinion east grave doubt on the prospects of that argument. As then-Justice Rehnquist interpreted the majority opinion, “the Court[] implicit[ly] recogni[zed] that there is no protected ‘symbolic speech’ in this case....”
Id.
at 720,
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,
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 “eommunicat[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.,
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 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.
Notes
.
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,
. 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,
. 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."
.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,
. 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.
. 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."
. 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 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.
. 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.
. Indeed, even a person who bums 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: