                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-1995

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Precedential or Non-Precedential:

Docket 94-3162




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                               NO. 94-3162


                         DIETER H.M. TROSTER

                                   v.

                  PENNSYLVANIA STATE DEPARTMENT OF
            CORRECTIONS; JOSEPH D. LEHMAN, COMMISSIONER;
                FREDERICK ROSEMEYER, SUPERINTENDENT

                                                     DIETER TROSTER,
                                                          Appellant



           On Appeal From the United States District Court
              For the Western District of Pennsylvania
                     (D.C. Civ. No. 94-cv-00131)



                     Argued:    September 22, 1994

               Before: BECKER, COWEN, Circuit Judges,
                   and GARTH, Senior Circuit Judge

                    (Filed: September 13, 1995)

                                        BRUCE   V.   HICKS,   ESQUIRE
(ARGUED)
                                        JOHN H. BINGLER, ESQUIRE
                                        Thorp, Reed & Armstrong
                                        One Riverfront Center
                                        Pittsburgh, PA   15222

                                        WITOLD J. WALCZAK, ESQUIRE
                                        American   Civil   Liberties
Union
                                        237 Oakland Avenue
                                        3rd Floor
                                        Pittsburgh, PA   15213

                                        Counsel for Appellant



                                   1
                                                 ERNEST      D.     PREATE,      JR.,
ESQUIRE
                                                 Attorney General
                                                 THOMAS F. HALLORAN,             JR.,
ESQUIRE (ARGUED)
                                                 GLORIA A. TISCHUK, ESQUIRE
                                                 CALVIN R. KOONS, ESQUIRE
                                                 JOHN G. KNORR, III, ESQUIRE
                                                 Office of Attorney General
                                                  of Pennsylvania
                                                 564 Forbes Avenue
                                                 Manor Complex
                                                 Pittsburgh, PA    15219

                                                 Counsel for Appellees



                            OPINION OF THE COURT



BECKER, Circuit Judge.

            Appellant   Dieter     Troster,       an    employee    of   the    State

Correctional Institution at Greensburg, Pennsylvania (“SCI”), is

in danger of losing his job as a corrections officer because, as

a matter of principle, he refuses to wear an American flag patch

on his uniform as required by departmental regulations.                   He filed

suit   in   the    District    Court       for    the     Western     District     of
Pennsylvania      against    the   Pennsylvania           State     Department     of

Corrections,      its   Commissioner        Joseph      D.    Lehman,     and     SCI

Superintendent     Fredric    A.   Rosemeyer,          seeking     injunctive     and

declaratory relief under 28 U.S.C. § 1983.                    After holding an

evidentiary hearing, the district court denied Troster's request

for a preliminary injunction.              The Pennsylvania Department of

Corrections then ordered Troster suspended for five days for

gross insubordination.        This court granted an emergency motion



                                       2
for an injunction pending appeal, and Troster has remained on the

job.   Troster has appealed the district court's order denying him

a preliminary injunction.

               Troster        advances         two        theories     to     support        his

allegations that the threatened disciplinary action violates his

rights under the First and Fourteenth Amendments.                                   First, he

advances       a     "compelled        speech"       argument--that        the    flag   patch

regulation that he refuses to observe unconstitutionally compels

him to engage in expressive or symbolic conduct.                                  Second, he

presses a "symbolic protest" theory, under which he urges that

his refusal to comply with the department regulation should be

protected as expressive or symbolic conduct intended and likely

to communicate his opposition to being compelled to "speak" by

wearing the flag patch.

               In Part 8 of this opinion we hold that Troster did not

demonstrate          a   likelihood       of     success       on    the    merits    of     his

compelled expression claim.                Even recognizing that in the wake of

Hurley    v.       Irish-American         Gay,       Lesbian   and    Bisexual       Group    of

Boston,       115    S. Ct.       2338,   2344       (1995),    the   threshold       test    of

expressiveness necessary to raise a First Amendment compelled

expression          claim   is    no    longer       as   stringent    as    we   previously

suggested in Steirer by Steirer v. Bethlehem Area Sch. Dist., 987
F.2d 989 (3d Cir. 1993), see infra at 9-11 & n.11, we believe

that     on    the       record    before      it     the    district       court    properly

concluded that the Department's flag patch regulation did not

require correctional officers such as Troster to engage in any

conduct sufficiently imbued with elements of communication that


                                                 3
the   regulation         might      be     forbidden         by    the     First   Amendment's

proscription against compelled speech.

               With      respect      to     the       alternative         symbolic      protest

theory, we conclude in Part 17 that, under the particular facts

of this case, Troster has not stated an analytically independent

claim     of     constitutional             violation.             One      who    violates    a

governmental compulsion to speak or engage in expressive conduct

merely to express opposition to that compulsion on "compelled

expression" grounds engages in no independently constitutionally

protected conduct.              In such a case the appropriate rubric for a

First Amendment claim is simply "compelled expression," and that

is therefore the sole free speech theory that we consider.                                    As

noted, it fails on the present record.                        Accordingly, the order of

the district court denying Troster's motion for a preliminary

injunction must be affirmed.

1. FACTS   AND   PROCEDURAL HISTORY

               Dieter Troster is a naturalized American who emigrated

to the United States from Germany when he was in his early

twenties.        He    enlisted      in     the       U.S.   army,       went     to   Officers'

Candidate School, became an officer, and was eventually promoted

to the rank of Major.               In 1981 he retired after twenty years of

service, including time in Viet Nam.                              Two years later Troster

secured employment with SCI.                      He has since received promotions

taking     him        from   Corrections          Officer         Trainee    to    Corrections

Officer     2     with       the    rank     of       Sergeant.      His     duties     include

supervising           inmates      acting    as       janitors       and    directing     other

corrections officers in their assigned tasks. Troster is also a


                                                  4
Training Sergeant, and he thus serves as an example to lower

ranking corrections officers.

            In 1991, the American Federation of State, County and

Municipal     Employees,    the     bargaining     representative      for   the

corrections officers, requested the Department to allow officers

to wear an American flag patch on their uniforms.               The Department

adopted a regulation allowing officers up through the rank of

Sergeant to wear an American flag patch on the right shoulder

sleeve of their uniform shirts.             The patch authorized by the

Department displays the flag with the star field oriented toward

the officer's back (with the star field in its customary position

in the upper left corner of the flag).               Although the original

regulation was permissive, on February 15, 1993 the Department

promulgated new uniform regulations (effective March 15) that

mandated display of the flag patch on the right sleeve of the

uniform shirt, star field oriented toward the rear.

            The Department adopts regulations concerning uniforms,

including     the   flag    patch    regulation,     with   the     intent    of

projecting the image of a professional correctional force.                   The

district court found that such an image is important to the

overall operations and security of SCI.               The presence of the

American flag patch is now one of the identifying features of a

corrections    officers's    uniform,      which   indicates,    the   district

court found, that the wearer is authorized to exercise the lawful

powers of corrections officers, including the use of firearms.

The district court accepted Superintendent Rosemeyer's contention

that the Department's interest in displaying the American flag as


                                       5
part of the uniform is legitimate because it fosters loyalty and

obedience to superior officers.

           Almost immediately upon adoption of the mandatory flag

patch regulation, Troster objected to being compelled to display

the American flag.          He believes that state-compelled display

desecrates    the   flag    and    debases    it.      Troster      considers     the

required displays deeply objectionable not only because of his

conviction that the American flag symbolizes freedom from state-

coerced political or patriotic speech, but also because, in his

view,   displaying    the    flag    with    its    star    field    to    the   rear

signifies cowardice and retreat from the principles for which the

flag stands.    Troster further believes that the "New Flag Code"

Resolution adopted by Congress in 1976, 36 U.S.C. §§ 173-177,

does not authorize corrections officers to wear the flag as part

of their uniform (although he does not press this argument on

appeal).

           In May 1993, in response to Troster's objections, the

Department    decided    not   to    enforce    the    flag      patch    regulation

pending review by the Department's General Counsel.                       Thus, the

regulation remained optional or unenforced from the spring of

1991 to January 27, 1994, with few if any disciplinary problems

resulting. Operations ran smoothly at SCI during this time.

           Nevertheless,          despite     the      fact      that     Troster's

performance    as    a     corrections       officer       had    otherwise      been

completely satisfactory, on January 20, 1994 the Superintendent

of SCI notified Troster that the Department would begin enforcing

the flag patch requirement on January 27, and that he must comply


                                       6
or face disciplinary proceedings.             Troster continued to refuse to

wear the flag, and on January 26 he filed this 28 U.S.C. § 1983

action    seeking    declaratory    and      injunctive     relief     against    the

mandatory aspect of the Department's flag patch regulation.                       The

next day the Department ordered Troster to appear at a fact

finding meeting.

            There, Troster was advised that his continuing refusal

to comply with the regulation constituted gross insubordination

and violated specific paragraphs of the Correctional Officer's

Code of Ethics.        A disciplinary hearing was set for February 8.

In the interim, however, a short-term agreement between Troster's

and the Department's counsel allowed Troster to continue working

without     wearing      the   patch.         Except      for     that    temporary

dispensation     for     Troster,     the    Department         has   enforced     the

regulation uniformly since the end of January 1994.

            On February 1, 1994, Troster moved for a preliminary

injunction against the Department's attempts to discipline him

and against the mandatory aspect of the flag patch regulation on

which those proceedings were based.               On February 3, the district

court     held   a   hearing   on     this    motion,      at     which   time    the

Corrections Department agreed to stay disciplinary proceedings

against Troster until the court ruled on the injunction.

            By   order    dated   March      18    the   district     court   denied

Troster's motion.        The court concluded that Troster had failed to

demonstrate a likelihood of success on the merits because neither

the flag patch regulation nor Troster's refusal to wear the patch

was     sufficiently     expressive     to    be    protectable       under      First


                                        7
Amendment free speech rights.                  Five days later, Troster moved for

reconsideration or injunction pending appeal.                               Two days after

this motion the Corrections Department held a pre-disciplinary

conference; four days later the district court denied Troster's

request for reconsideration.                   On April 4 Troster filed a notice

of appeal.      The next day, he moved in this court by motion for an

emergency injunction pending appeal.                       Defendants notified Troster

that if he continued to refuse to wear the flag patch, he would

be suspended for five days commencing April 9.                               On April 8, a

motions   panel       of    this    court      granted       Troster's      motion     for    an

injunction pending appeal.                We have jurisdiction under 28 U.S.C.

§ 1292(b).      We    review       the    grant       or    denial     of    a    preliminary

injunction      for        abuse     of   discretion;            the    district       court's

discretion is abused if it erred in stating or applying the law.

See Frumer v. Cheltenham Tp., 709 F.2d 874, 876 (3d Cir. 1983).

2. THE COMPELLED EXPRESSION CLAIM

a.

             Troster        objects       to    the        compulsory       aspect    of     the

Department's flag patch regulation on the grounds that it compels

him to engage in expressive conduct in violation of the First

Amendment.      "[T]he protection granted by the First Amendment is

not   limited        to    verbal     utterances           but    extends        as   well    to

expressive conduct."               Steirer by Steirer v. Bethlehem Area Sch.
Dist.,    987   F.2d       989,     994   (3d       Cir.    1993).      Moreover,       "[t]he

freedom of speech protected by the First Amendment, though not

absolute, includes both the right to speak freely and the right

to refrain from speaking at all."                     Id. at 993 (quoting Wooley v.


                                                8
Maynard, 430 U.S. at 714, 97 S. Ct. at 1435) (internal quotation

marks and footnote omitted).

            We are not dealing here with compelled disclosure of

personal    or      private    information.           See,    e.g.,    Leora     Harpaz,

Justice     Jackson's        Flag    Salute      Legacy:        The    Supreme    Court

Struggles to Protect Intellectual Individualism, 64 TEX. L. REV.

817, 818 (1986) (distinguishing "[t]wo distinct kinds of liberty

interest [that] support the right to refrain from expressive

activity[,] . . . . an interest in not being forced to reveal

information about personal beliefs or associations . . . . [and]

an interest in not being forced to belong to any organization or

to make any statements when [individuals] would rather be silent

or express different views") [hereinafter Harpaz, Intellectual

Individualism];         Shelton     v.   Tucker,     364     U.S.   479,    484-90,   81

S. Ct. 247, 250-53 (1960) (public school teacher need not reveal

all organizations to which teacher has belonged).                          Instead, the

issue is whether the flag patch requirement "invades the sphere

of intellect and spirit which it is the purpose of the First

Amendment      to    our    Constitution        to   reserve    from    all    official

control," West Virginia St. Bd. of Educ. v. Barnette, 319 U.S.
624, 642, 63 S. Ct. 1178, 1187 (1943).

            The threshold issue with respect to Troster's compelled

expression claim is whether the flag patch regulation required

Troster to engage in expressive conduct.                     In Steirer by Steirer

v. Bethlehem Area School District, 987 F.2d 989 (3d Cir. 1993),

this   court     held      that,    in   order   for   governmentally         compelled

conduct to be considered "expressive" within the meaning of the


                                            9
First Amendment, the actor must have "[a]n intent to convey a

particularized message . . . and in the surrounding circumstances

the   likelihood     [must     be]   great    that    the   message        would    be

understood by those who viewed it.'"                Id. at 995 (quoting with

alteration Spence v. Washington, 418 U.S. 405, 410-11, 94 S. Ct.

2727, 2730 (1974) (per curiam) (emphases supplied here).                           When

determining whether conduct is expressive for First Amendment

purposes,     many     other    courts       and    commentators          have     also

interpreted    Spence     to    require      both    an   intent     to    convey     a

particularized message and a great likelihood that this message

will be understood.

            Whether or not this reading of Spence was justified,0

the Supreme Court just this past term has made clear that "a

narrow, succinctly articulable message is not a condition of

constitutional       protection,     which    if     confined   to    expressions

conveying a `particularized message,' cf. Spence v. Washington,

418 U.S. 405, 411, 94 S. Ct. 2727, 2730 (1974) (per curiam),

would never reach the unquestionably shielded painting of Jackson

0
Spence, which has become the touchstone for evaluating whether
conduct is expressive for First Amendment purposes, contained no
language of necessity. A particularized intent and a likelihood
that the message would be understood were present in that case,
but the Supreme Court did not say that those were always required
for expressive conduct. Rather, after discussing the context in
which Spence's protest occurred, the next paragraph of the
Court's opinion "noted, further, that [Spence's conduct] was not
an act of mindless nihilism." Id. at 410, 94 S. Ct. at 2730. In
concluding the paragraph elaborating this observation, the Court
simply explained that in Spence's case, "[a]n intent to convey a
particularized message was present, and in the surrounding
circumstances the likelihood was great that the message would be
understood by those who viewed it." Id. at 410-11, 94 S. Ct. at
2730.


                                       10
Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis

Carroll."      Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of Boston, 115 S. Ct. 2338, 2345 (1995) (citation omitted).

            In    light        of    Hurley,            we    believe    that     Steirer's

restrictive test is no longer viable, and that the expressiveness

of   conduct     should        be    gauged        by    the    language       that     Spence

explicitly articulated as a test:                            whether, considering "the

nature of [the] activity, combined with the factual context and

environment      in   which     it    was     undertaken,"         we    are    led    to   the

conclusion     that      the    "activity          was       sufficiently      imbued       with

elements of communication to fall within the scope of the First

and Fourteenth Amendments . . . ."                       Spence, 418 U.S. at 409-10,

94 S. Ct. at 2730.             This test for determining whether the flag

patch requirement compels "expression" from Troster and the other

corrections      officers       is    a     fact-sensitive,         context       dependent

inquiry.          And,     Troster's          contentions           to      the       contrary

notwithstanding, we apply this test not only to symbolic protest

cases (see discussion infra) but also to cases alleging compelled

expressive conduct.        The burden of proof concerning this question

is on Troster, and, as we now explain, he has not at this point

met his burden under Spence.
b.

            We note at the outset of our analysis that this case is

unlike most of the Supreme Court's compelled expression cases in

that it does not involve actual verbal or written expression.                                 In

Barnette, the plaintiff schoolchildren were required to salute
the American flag and to recite the pledge of allegiance.                                    319


                                              11
U.S. at 628-29, 63 S. Ct. at 1180-81.                     In Wooley v. Maynard, the

plaintiffs      were    required        to    display      the    written     ideological

slogan "Live Free or Die" (New Hampshire's state motto) on their

license plates. Even in Abood v. Detroit Board of Education, 431

U.S. 209, 97 S. Ct. 1782 (1977), "a state-required contribution

by   public    school       teachers     to    a   labor      union's    activities was

deemed expressive conduct, but only to the extent those union

activities      involved       the      expression       of    political      views,    the

support   of       political    candidates         or    the     advancement    of     other

ideological causes."           Steirer, 987 F.2d at 995 (citing Abood, 431

U.S. at 234-36, 97 S. Ct. at 1799-1800).

              In    contrast       to    Wooley,        Barnette,       and   Abood,     the

compulsion to which Troster objects does not involve words, which

convey a clear ideological message.0                      Even if other drivers or

pedestrians did not think that the Maynards (as opposed to the

state) were the source of the message "Live Free or Die," the

message   was       being    delivered        to   such       bystanders.       Here,     in

contrast, flag patch observers are presented with a symbol that

has various and somewhat imprecise ideas associated with it.

Completely aside from the question of misattribution, see, e.g.,
Hurley,   115       S. Ct.    at     2349     (reserving       the   question    of     "the
0
Although other Supreme Court cases involved First Amendment
challenges to required statements that were not ideological, see,
e.g., Riley v. National Federation for the Blind, 487 U.S. 781,
795-801, 108 S. Ct. 2667, 2676-80 (1988) (invalidating law
requiring   professional  fundraisers   to  disclose   to  donors
percentage of contributions turned over to charities), these are
more properly viewed as "compelled disclosure" cases, rather than
"intellectual individualism" cases like Barnette, Wooley, and
Abood. See Harpaz, Intellectual Individualism, 64 TEX. L. REV. at
818-19.


                                              12
precise significance of the likelihood of misattribution"), the

record does not sustain the conclusion that the flag patch on the

correctional      officers'     uniforms       will    relay      any        message

(ideological or otherwise) to anyone; Troster has presented no

evidence   that   it   is   likely   to    function      in   a   communicative

fashion.

           The    conduct     required    of   Troster    bears     a    slightly

greater resemblance to that demanded of the plaintiff in Lipp v.

Morris, 579 F.2d 834 (3d Cir. 1978), where a high school student

successfully     challenged    the   requirement       that   she   "show      full

respect to the flag while the pledge is being given merely by

standing at attention" during the flag salute and recitation of

the Pledge of Allegiance.         Id. at 835 n.2 (emphases supplied).

We also recognize some similarity among the governmental purposes

in Barnette, Lipp, and here:             in Barnette the state required

students to salute the flag and recite the Pledge of Allegiance

in order to promote national unity, see 319 U.S. at 631 n.12, 63

S. Ct. at 1182 n.12; in Lipp the state required the plaintiff to

stand in order to demonstrate respect for the flag; and here the

state required Troster to wear the flag in part to foster loyalty

and obedience to his superior officers.                Additionally, we may

agree with Troster that the flag of the United States is an

"obviously     expressive     element,"    Br.    of    Appellant       at    26-27

(quoting Steirer, 987 F.2d at 995), and we are fully cognizant
that the flag is a unique symbol in our history, one "[p]regnant

with expressive content."        Texas v. Johnson, 491 U.S. 397, 405,
109 S. Ct. 2533, 2540 (1989).


                                     13
               Nevertheless, we think that the gap between Troster's

case and Lipp is not one that we may bridge on the present

record. As the Supreme Court has admonished, not every action

taken with respect to the flag is expressive.                 Id.    Under the

circumstances in Lipp, the conduct required of the plaintiff

plainly could be seen as a demonstrative act of respect for the

flag shown by her (coerced) actions.            She was required to stand

silently at attention, displaying respect, while her classmates

saluted the flag.        The government had thus specifically required

that     she   engage   in   conduct   manifesting    an    attitude.    Here,

however, it is not apparent from the record that the conduct

required       of   Troster--passively      wearing   the     flag   patch--is

similarly demonstrative of an attitude or belief.0              Rather, there

is presently no basis for concluding that the requirement that

Troster wear the flag patch on his uniform compels him in effect

"to profess any statement of belief or to engage in any ceremony

of assent to one."           Barnette, 319 U.S. at 634, 63 S. Ct. at

1183.0

0
 We are aware--and if Troster establishes the communicative
nature of the flag patch regulation at the final hearing the
district court should bear in mind--that in Wooley v. Maynard,
the Supreme Court recognized that "[c]ompelling the affirmative
act of a flag salute involved a more serious infringement upon
personal liberties than the passive act of carrying the state
motto on [one's] license plate, but" it considered "the
difference [to be] essentially one of degree." 430 U.S. at 715,
97 S. Ct. at 1435 (quoted in Laurie Allen Gallancy, Teachers and
the Pledge of Allegiance, 57 U. CHI. L. REV. 929, 939 (1990)).
0
 From the failure of the opinion in Lipp to mention "record
evidence that standing during the flag ceremonies conveyed a
particularized message," Br. of Appellant at 26, and the
approving citation of Lipp in Steirer, 987 F.2d at 994, Troster
argues that "the Steirer court could not have enunciated a


                                       14
           Troster     was    one   of   an   entire   force      of   corrections

personnel required to wear the flag patch on their uniforms.

Evidence at the hearing showed that the uniforms of a large

number of organizations have flag patches on them.                        Troster,

however,   presented    the    district       court   with   no    evidence   (for

example, surveys) suggesting that anyone (other than himself)

would be likely to view the wearing of the patch as communicative

or expressive, or that people who wear such uniforms with such

flag patches actually assert anything to anyone.                  Observers might

perhaps infer that the wearer is patriotic, but Troster put on no

evidence that observers would likely understand the patch or the

wearer to be telling them anything about the wearers' beliefs.

Cf. Peter Meijes Tiersma, Nonverbal Communication and the Freedom

of "Speech", 1993 WIS. L. REV. 1525, 1554 & n.122 (citing H.L.A.

principle   that  required   record  evidence   to   support  the
proposition that the act in question will be understood in a
particular fashion, as the District Court required in this case,"
Br. of Appellant at 26-27.      The district court, at the time
properly following Steirer, may have searched for too narrow a
message in the act of wearing the flag patch.      See discussion
supra n.10 and accompanying text. However, neither that fact nor
the lack of citation to record evidence in the Lipp opinion
relieves Troster of the burden of showing that the flag patch
regulation compelled him to engage in expressive conduct.     The
state-coerced conduct at issue in Lipp was a ceremonial
gesture--"standing at attention"--occurring in the midst of even
more blatant expressions of respect for the flag, all confined to
a brief set period each school day. Here, the conduct at issue
is the wearing of a small patch on a uniform sleeve throughout
the entire work day.    We do not agree with Troster that it is
"readily inferable," Br. of Appellant at 27, that wearing a flag
patch on a corrections officer's uniform "would be seen by most,
if not all, observers as showing respect for the flag," id., and
we do not think it too great a burden on Troster's First
Amendment interests to require him to come forth with some
evidence to support his otherwise bare assertion that the flag
patch regulation compels expressive conduct.


                                         15
Hart, Signs & Words, 2 PHIL. Q. 59, 61-62 (1952), discussing

whether neighbor shutting windows in preparation for coming storm

asserts   something      thereby,    and       concluding     "no")   [hereinafter

Tiersma, Nonverbal Communication].

              We do not know whether survey data might be available

to support Troster's expressive conduct claim.                 Perhaps Americans

(or even an appropriate subset thereof, such as inmates and staff

of and visitors to SCI) do in fact perceive people who wear (for

example) a Boy Scout, Girl Scout, or police uniform with a flag

patch as expressing a patriotic or other ideological message or

agreement therewith; perhaps not.

              Our duty, however, is to evaluate Troster's likelihood

of success on the basis of the evidence presented.                      And as we

discuss   below,    see    infra     at    18-21,       the   Supreme   Court    has

cautioned that the First Amendment should not be held to shield a

limitless variety of conduct from governmental regulation.                  Thus,

sympathetic as we may be to Troster's genuine patriotism as well

as with his predicament, we cannot accept his suggestion that we

hold, as a matter of "common sense" and law, that the mere act of

wearing   a    uniform    with   a   flag       patch    on   it   constitutes   an

expressive or communicative "use" of the flag, cf. Spence, 418
U.S. at 410, 94 S. Ct. at 2730 (“The Court for decades has

recognized the communicative connotations of the use of flags.”)

(emphasis supplied), within the scope of the First Amendment.

c.

              In short, Troster has not at this time met his burden.

The district court's factual conclusion that "[w]earing the flag


                                          16
patch on a corrections officer's uniform . . . does not convey

any agreement or disagreement with all or any of the many things

a flag may symbolize, or the Department's view of the flag," op.

at 21, App. at 124, is sufficiently supported by the current

record.   Accordingly,         we   hold    that       Troster     has    not    shown   a

reasonable likelihood of success on the merits with respect to

his compelled expression claim, for he has not made the necessary

threshold showing that he was (probably) coerced to engage in

expressive conduct.          Thus, Troster presented the district court

with no basis to have granted him a preliminary injunction.

3. VIABILITY   OF THE   SYMBOLIC PROTEST THEORY   IN   THESE CIRCUMSTANCES

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

0
Technically the First Amendment is inoperative against the
states, but its strictures are nonetheless binding on the states
via the Fourteenth Amendment.     For simplicity, however, this
opinion frequently refers only to the First Amendment.


                                           17
regard for a "preferred right[]," see, e.g., Smith v. People, 361

U.S. 147, 169, 80 S. Ct. 215, 227 (Douglas, J., concurring),

reaffirmed in several of the Court's recent decisions.0                             But we

are satisfied that where, as here, a person seeks only to express

opposition     to     what   he   or    she    perceives       as     a    governmental

compulsion to engage in speech or expressive conduct, refusing to

comply with the very governmental compulsion at issue is not

protected as symbolic protest under the First Amendment, for that

theory   obscures      the   nature     of    the    interests      at     stake.      Put

differently, in circumstances such as these where there is a

colorable claim that a governmental compulsion violates the First

Amendment's     restrictions       on    governmentally            compelled      speech,

there    are    not    two    potentially        viable      arguments        that     the

Constitution's free speech guarantees protect a person's refusal

to comply with the governmental compulsion solely because of

opposition to the compulsion.                The compulsion to "speak" may be

addressed either as a symbolic protest claim, or as a compelled

speech claim, but not both.             Here, as shall be apparent, the most

apt rubric is compelled expression.

              Our   conclusion    that       Troster    may    not        raise   both   a

compelled expression claim and a symbolic protest claim grounded

solely   in    objection     to   compelled         speech    is    animated      by   the

caution with which the Supreme Court has instructed courts to

view symbolic conduct claims.             The Court has warned that not all

0
In the 1994-1995 term, the Supreme Court ruled on eight free
speech claims. "In seven of eight First Amendment-related cases,
the party asserting free speech rights prevailed." 64 U.S.L.W.
3055 (Aug. 1, 1995).


                                          18
conduct, even conduct involving the flag of the United States, is

"expressive" for purposes of the First Amendment.                            See Texas v.

Johnson, 491 U.S. at 405, 109 S. Ct. at 2540.                         We do not presume

that Troster's refusal to wear the flag patch on his correctional

officer's uniform was not expressive as a factual matter.                                 See

also infra at 22.         Rather, we believe that as a legal matter, the

First    Amendment       does     not    protect     any      "right"      to    disobey    a

governmental         compulsion     for    the      sole      purpose      of    expressing

protest against the compulsion on the grounds that it allegedly

requires one to engage in speech or expressive conduct.

               As     Professor     Tiersma        has     explained,        a    recurring

jurisprudential concern "is that the Free Speech Clause may be

invoked by anyone who violates a law, claiming to protest against

it."    Tiersma, Nonverbal Communication, 1993 WIS. L. REV. at 1585.

For    example,       Tiersma     recounts    that       in   Cox    v.    Louisiana      the

Supreme    Court       stated     that    "[o]ne     would     not    be    justified      in

ignoring the familiar red light because this was thought to be a

means of social protest."                Id. (quoting Cox, 379 U.S. 536, 554,

85    S. Ct.    453,     464    (1965)).          Similarly,       Justice       Scalia   has

observed       that    "virtually        every     law     restricts       conduct,       and

virtually       any    prohibited        conduct     can      be     performed      for    an

expressive purpose--if only expressive of the fact that the actor
disagrees with the prohibition."                   Barnes v. Glen Theatre, Inc.,

501 U.S. 560, 576, 111 S.Ct. 2456, 2466 (1991) (Scalia, J.,

concurring)         (emphasis     supplied)       (cited      in    Tiersma,      Nonverbal
Communication, 1993 WIS. L. REV. at 1585-86).                           See also, e.g.,

State of Washington v. Adams, 479 P.2d 148 (Wash. App. 1971)


                                             19
(rejecting defendant's contention that his using a set net in

violation      of    regulatory     salmon       fishing    statute    was   "symbolic

speech"      protected      by   First     Amendment       where   defendant's     only

purpose in using the net was to demonstrate the irrationality of

the statute prohibiting its use).

              As     the    foregoing       discussion       suggests,       permitting

parties to pursue a claim that the First Amendment grants them a

right to violate a law solely as a means of publicizing their

objection      to    that    law    would    burden    courts      with     essentially

duplicative First Amendment claims.                 We believe that this problem

is particularly acute where individuals violating a governmental

compulsion to engage in some behavior merely assert that their

violation          expresses       their     belief        that     the      compulsion

unconstitutionally requires them to speak or engage in expressive

conduct.       In such circumstances, both the compelled speech and

the       putative    symbolic      protest       theories        involve    the   same

objection:      the individual does not want to be used by government

as    a    mouthpiece       to   disseminate       ideological      messages.       The

symbolic protest theory simply adds a desire to communicate this

opposition to others.

              The addition of a constitutional symbolic protest claim

to a compelled speech claim in this circumstance would only serve

to give individuals an additional yet futile bite at the apple.0

0
Limited as our powers of imagination may be, we nevertheless
cannot conceive of circumstances in which individuals' symbolic
protest claims grounded solely in refusal to engage in allegedly
coerced expressive conduct could succeed where the root
expressive conduct claim failed. If government had an interest
sufficient under the First Amendment to justify compelling

                                            20
We do not believe that the Constitution's free speech guarantees

countenance    such    a    waste    of   judicial       resources       (and   of    the

governmental    resources      needed      to        defend   such      claims).      It

distorts the constitutional inquiry to shift the focus away from

the   government's     interest     in    enforcing       its    expressive-conduct

compulsion (despite opposition thereto), to focus instead on the

individual's interest in communicating opposition by violating

the compulsion, as Troster's dual theory would do.                         Rather, we

believe that, in circumstances such as these, the goal of the

individual's conduct is properly characterized with regard to the

First     Amendment    as    avoiding          the     compulsion,       rather      than

expressing disagreement with it.

            In sum, symbolic protest claims are not analytically

independent     of    compelled      expressive         conduct      claims     in   the

circumstances that we have described.                     Courts must therefore

determine which theory more accurately captures the essence of

the constitutional objection.             Cf. Walters v. National Ass'n of

Radiation Survivors, 473 U.S. 305, 335, 105 S. Ct. 3180, 3196-97

(1985) (holding that free speech claim essentially duplicating

the     objection    presented      in    due    process        claim    was    of   "no

independent significance").              In this case, it is the compelled

expressive conduct claim.           We hold that Troster's conduct was not

constitutionally protected as a means of symbolically expressing


individuals to deliver ideological messages despite their
opposition, it seems that interest would also be sufficient to
justify requiring the individual to deliver the message despite
his or her desire to communicate that opposition (to either the
message or the compulsion) by refusing to deliver it.


                                          21
opposition, on compelled expression grounds, to the expressive

conduct that Troster perceived the flag patch requirement to

compel.

b.

              This     holding    does    not    require    us     to    reject    the

reasoning of Leonard v. City of Columbus, 705 F.2d 1299 (11th

Cir.    1983),   upon     which    Troster      relies    and    which   bears    some

factual similarity to the instant case.                  In Leonard, a number of

police officers were disciplined for appearing in uniform without

the    flag    patch    required     by    departmental         regulations.       The

officers had staged a public rally at which they removed their

patches to protest racial discrimination within the police force.

The court of appeals held that the officers' conduct amounted to

symbolic speech protected by the First Amendment.                        See id. at

1304.

              Troster suggests that this holding at the very least

strongly counsels for a ruling in his favor.                     Leonard, however,

is unlike this case in a crucial respect, which we believe is

what the district court was driving at when it distinguished

Troster's situation from Leonard on the grounds that Troster
lacked an "underlying political or patriotic message."                     Op. at 21

(JA 000124).

              In Leonard, although the conduct at issue (the means of

the     officers'      protest)     was    violation       of     the    flag     patch

regulation, the object of the protest was not the regulation

itself, but rather discrimination by the Department.                      The reason

for     the   protest     was     that    the   Department's       alleged      racial


                                          22
discrimination violated their rights to equal protection of the

laws, not a belief by the officers that the regulation compelled

them to engage in expressive conduct in violation of their First

Amendment rights.      Thus, the officers were engaged in speech for

some reason other than protesting being used as a governmental

mouthpiece.

            As in Leonard, the means of Troster's protest was also

violation of a departmental flag patch regulation.                       In contrast

to   the   officers'   protest    in    Leonard,       however,    the    object   of

Troster's protest was the regulation itself.                      The reason for

Troster's     violation     was        that     the      regulation        allegedly

unconstitutionally compelled him to "speak" by wearing the patch

on his uniform. Thus, even if Troster engaged in symbolic speech

by violating the flag patch regulation, he did so solely for the

purpose of protesting the fact that (in his view) the regulation

improperly compelled him to "speak."             Hence, it is apparent that

the reason for Troster's conduct--namely, his violation of the

Department's flag patch regulation, which was the basis for the

disciplinary proceedings that he seeks to enjoin permanently--the

only point that he was trying to make, was that the regulation

violated his First Amendment right not to be a mouthpiece for the

government.    Troster's   symbolic          protest    claim     is   thus   wholly

derivative from his compelled expression claim, which is the

essence of his objection to the flag patch regulation, and his




                                        23
free       speech    objection       should    accordingly          be    subject         only    to

compelled expression analysis.0

               Similarly,        the      symbolic       protest    claim       in    Spence      v.

Washington,          418      U.S.   at    405,     94     S. Ct.    at     2727,         was    not

derivative          of    a   compelled      expression       claim.         There,         Spence

displayed an American flag with peace signs attached in order to

protest American violence in Cambodia and at Kent State.                                        After

being       arrested       for   violating     a     law    that    prohibited            improper

display of the American flag, his successful claim was that he

had    a    First        Amendment     right   to    express       his    message         in     that

fashion, and that the state could not constitutionally punish him

for doing so. Spence's means of expression was a violation of the

flag display statute, but the reason for his protest, the message

he sought to convey, was not a belief that the flag display

statute       (a     prohibitory          measure)        compelled       him        to    express


0
This derivative relationship would not be present in the case of
a Rosa Parks sitting in the front of a segregated bus. If her
actions were analyzed as expressive conduct, her message would
not be that the ordinance requiring her to sit at the back of the
bus was forcing her to say something. She would not be simply
protesting   being   used as     a  mouthpiece   to   deliver   some
governmental message.     Her message would be that the Jim Crow
regime was denying her the equal protection of the laws. Thus,
even if she were to raise both an equal protection and a symbolic
protest   claim    against   the   governmental    compulsion,   her
message--conveyed     by    her    violation    of    the    seating
ordinance--would be more than simply opposition to being forced
by the ordinance to "say" something, and thus she would have only
one colorable free speech claim, and symbolic protest (rather
than compelled expression) would be the appropriate mode of
analysis.   While the seating requirement certainly reflected a
racist attitude or view about the dignity and social status of
black Americans, objection merely to compelled "speech" simply
would not have been the only message Rosa Parks sought to convey
by her actions.


                                               24
something that he did not want to say.     He was not protesting

being forced to act as a mouthpiece for government.       Thus, the

free speech claim in Spence lacks the duplicative quality of

Troster's claim(s), and that case does not help him establish

independent viability of his symbolic protest theory.0

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


0
Indeed, even a person who burns a flag to protest a statute
prohibiting flag burning would not have the same derivative
structure to his or her claim.      Certainly, the means of the
symbolic protest would be a violation of the very law that is the
object of the protest. But the reason for the protest would be a
belief that the statute unconstitutionally prohibited him or her
from speaking; while there may be viewpoint discrimination at
work, there is no colorable compelled speech claim there.      By
prohibiting flag burning, the statute simply does not require the
hypothetical banner burner to express anything. So there is just
one free speech claim in this scenario:       that government is
unconstitutionally prohibiting an individual from speaking his or
her mind.    The flag burner cannot claim that the prohibition
forces her to act as a mouthpiece for government, and there is
thus no difficulty in letting the individual proceed with a
symbolic protest claim.


                               25
red reflective tape). The Maynards argued both that their act of

covering the motto was constitutionally protected because it was

necessary for them to avoid a compelled affirmation of belief,

and that their act constituted protected symbolic speech not

outweighed by sufficient state interests.                  A three-judge district

court declined to "consider whether their First Amendment right

to be free from a required affirmation of belief is implicated,"

concluding instead that the Maynards' affirmative act of covering

the motto was constitutionally protected expressive conduct.                          406

F. Supp. 1381, 1386 (1976).

            On    appeal,    the    Supreme        Court    took   a    dramatically

different approach to the case.              The Court "found it unnecessary

to pass on the `symbolic speech' issue," concluding that there

were   "more     appropriate   First    Amendment          grounds"    on     which   to

affirm the judgement of the district court.                  430 U.S. at 713, 97

S. Ct. at 1434. The Court explained:
          We turn instead to what in our view is the essence of
          [the Maynards'] objection to the requirement that they
          display the motto `Live Free or Die' on their
          automobile license plates. . . .    We are thus faced
          with   the   question   of  whether   the   State   may
          constitutionally require an individual to participate
          in the dissemination of an ideological message by
          displaying it on his private property in a manner and
          for the express purpose that it be observed and read by
          the public. We hold that the State may not do so.

Id., 97 S. Ct. at 1434-35 (emphasis supplied).
            While    the    Court    did     not    expressly      rule       that    the

Maynards had no viable symbolic protest claim, its opinion cast

grave doubt on the prospects of that argument.                     As then-Justice

Rehnquist      interpreted     the     majority        opinion,        "the     Court[]



                                        26
implicit[ly] recogni[zed] that there is no protected `symbolic

speech' in this case . . . ."                     Id. at 720, 97 S. Ct. at 1438

(Rehnquist,         J.,    dissenting).               Of     particular       note    is      the

majority's assertion that had the state granted the Maynards'

request    for      special     license      plates        not   containing         the     state

motto, the act of displaying them would not be "sufficiently

communicative to sustain a claim of symbolic expression."                                 Id. at

713 n.10, 97 S. Ct. at 1434 n.10. This observation alone could be

virtually dispositive of Troster's symbolic protest claim.

              The    Court      stated      in    Wooley      that     the    display       of   a

license      plate    without      the      state      motto     would       not   amount        to

constitutionally protected expressive conduct, see id. at 713

n.10,   97    S. Ct.       at   1434     n.10,        even    though     most      other     cars

displayed plates with the motto, and even though "New Hampshire

citizens      [were]       generally        aware      that      individuals         like    the

plaintiffs ha[d] been covering the `Live Free or Die' on their

license    plates         in   order   to    express         their   opposition        to     the

motto's implication that political freedom is the greatest good,"

see 406 F. Supp. at 1387 n.11.                    Similarly, since Troster opposes

the flag patch regulation because he believes that it coerces him

to engage in "speech" (actually, expressive conduct), we believe

that his conduct in wearing his correctional officer's uniform

without the flag patch, which is required and is in fact worn by

all the other guards, would not be protected symbolic speech even

if, as he argued before the district court, his contemporaneous

and   repeated       explanations        would        insure     that    observers          would

likely understand the reason for his refusal.


                                                 27
             In reaching this conclusion, we note that the Supreme

Court in Wooley did not contest the evidence and the district

court's conclusion, see id., that the people of New Hampshire

would most likely understand the significance of the Maynards'

acts. Rather, the Court concluded that the act of displaying

"expurgated    plates"      would   not    "sustain   a   claim       of   symbolic

expression."      430 U.S. at 713 n.10, 97 S. Ct. at 1434 n.10

(emphasis    supplied).       The   fair    implication        of   this   is    that

certain conduct might be expressive in fact yet not protected by

the First Amendment as symbolic expression.

             In determining that Troster's conduct falls into this

category, we emphasize that the Supreme Court focused on what it

termed "the essence" of the Wooley's constitutional claim against

the anti-defacement statute.          The basis of the Maynards' claim

was, constitutionally speaking, not that the law in question

prohibited them from "communicat[ing] affirmative opposition to

the motto." Id.        Rather, the essence of their constitutional

objection was that the State was requiring individuals to help

disseminate an ideological message by displaying it on their

private property. See id., 97 S. Ct. at 1434-35.                    This is not a

symbolic protest issue, but a compelled expression issue, which

is how the Court treated it.

             Coming full circle, we believe that, as a matter of

law,   the   essence   of    Troster's     objection      to    the   flag      patch

regulation is not that it limits his ability to protest being

used as a governmental mouthpiece.             Rather, the essence of his

claim is reflected by the stated reason for his protest:                    Troster


                                      28
believes   that      the    regulation    in    question    unconstitutionally

requires him to engage in expressive conduct in violation of his

First Amendment rights.          This is a colorable compelled expression

claim,   and    that   is    how   we   have   analyzed     his   constitutional

challenge to the Department's regulation in Part III supra.

           In       sum,    because     the    message     Troster    wishes   to

communicate is simply opposition to the Department's flag patch

regulation     on    compelled     expression    grounds,     and    because   his

preferred method of communicating this message is violation of

the regulation, compelled speech analysis is the proper vehicle

for his constitutional challenge.               Since we have rejected that

claim, the order of the district court denying Troster's motion

for a preliminary injunction will be affirmed.

           The injunction we granted Troster pending this appeal

will be vacated. Parties to bear their own costs.




                                         29
