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If such ‘nonverbal’ speech is in conjunction with political activity, it’s pretty much protected. The right to peaceably assemble, and all that. And flag-burning is fairly clearly political speech, when it doesn’t involve theft and vandalism. Exercise of Religion gets pretty much the same protection, which puts your ‘Catholic Mass’ example pretty much outside the realm of Constitutional possibility.

Performance art, OTOH? I don’t read anything in the Constitution that grants anyone the right to absolute freedom of Art. Liberty is a fairly narrow razorback ridge, and there are seriously slippery slopes on both sides of that ridge.

While I’m of the opinion that we’ve slid a good ways down one slope of that particular ridge, we don’t need to pull ourselves back to the top just to throw ourselves down the opposite side.

Some speech is act.
Not all act is speech.

When the minister or government bureaucrat declares “I now pronounce you husband and wife” he is performing an act.

But when I burn a flag, I am not engaging in speech except in the imaginations of my pot-head friends cheering me on.

The Supreme Court, in my opinion, failed to grasp Logic 101 when they declared that flag-burning is speech. Only to a very confused individual is it speech.

(2) Current ConLaw doctrine makes this a regrettably low bar in the normal case. Most human activities can be reached under the Commerce Clause authority of the federal government, or the general police power of state and local governments.

(3) The Supreme Court has held, and I agree, that where human behavior is freighted with expressive content, the First Amendment operates as a limitation on government authority, and the bar for government regulation is much higher. Specifically, conduct that is intended to convey an idea or message that is likely to be understood by others may only be regulated only on a showing that the law furthers an important government purpose unrelated to the supression of expression, and is no more restrictive than necessary to achieve that purpose. I think that it is an appropriate balancing test that permits truly important, content-neutral regulation while invalidating the authoritarian and picayune.

Something that I will note is that, as always, our ‘Freedom of Speech’ is only vis-a-vis the government. The government cannot restrict our speech, but any other entity can.

E.g., my ‘speech’ on this website can be suppressed by the owners, for any reason, and at any time, and protesting based on my ‘freedom of speech’ is meaningless.

From this, I feel that it is clear that the Founders believed that this freedom had to be guaranteed against entities that had the ability to compel obedience (which the government does).

I believe that nonverbal communication should be given the same protection that speech has, provided that the communication is clear an unambiguous, and that the communication could not be carried out adequately in speech. The sex example above is not clear (because sex is no longer seen as an expression of love, necessarily), and we have many different ways of expressing a wide range of affection.

However, as I posted at Big Lizards, I think that there is a recognized Right to non-verbal speech. I also believe that it can be regulated(as is verbal speech) by the Legislature, and those regulations judged by the Courts. I cannot see any reason to give the two forms of expression different treatments under Just Law.