Marching on the steps and yelling “I hate the President!” would be protected.

Marching on the steps and ripping a picture of the president in half could not be protected?

What an utter nonsensical outcome.

Calling the smell of bread speech could indeed be absurd. This is a blog after all. But your point is well-taken. My post takes for granted that the current First Amendment jurisprudence is correct, or prudent, in assuming a rather expansive definition of conduct as constitutionally-protected speech. Specifically the actor needs to intend that the conduct be communicative and the viewer or onlooker understand that that the actor is being communicative. There is no consideration of the substance of the communicative conduct (i.e. that the conduct is attempting to communicate a political message or a commercial message and the like). That can be problematic primarily, in my estimation, to the extent that these decisions are being made apart from the democratic process.

I must say, though, that I’m not real sure of what an originalist definition of speech would be. In order to consider it in my analysis of regulation of Subway’s bread smell, it would be nice to know, for instance, whether the Framers would protect commercial speech and if any forms of conduct would be considered “speech.”

Even then, I’m not really convinced we should return to that definition, despite my originalist inclinations on many things. Assuming the original definition–to the extent we acertain it–is narrower than the contemporary one, the latter might be preferable in situations like this where we essentially establish a presumption in favor of protecting the speech in order to help private entities maximize economic opportunity and protect them from broad-reaching efforts to use government regulation to regulate, as an outlawed form of advertising, something as trivial as the smell emanating from an oven at a restaurant in order to suit some specious ends.

That being said, let me put on my Scalia hat and answer with a resounding no. Of course, I should probably say “my originalist hat” because I don’t actually know what Scalia would say. But generally, I disdain the increasing propensity of the Court to expand the Constitution to the point that it no longer means what it says anymore. Calling the smell of bread “speech” is probably a good example of such absurdity.