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3 Kinds of Conduct
• No communicative value
• Purely Communicative
• Both communicative and non-communicative
Court Tests
1) Is the conduct expressive?(Intent and likelihood)
Court Tests
1) Is the conduct expressive?(Intent and likelihood)
• If no, government may regulate• If yes, we ask the next question . . .
Court Tests
1) Is the conduct expressive?(Intent and likelihood)
• If no, government may regulate• If yes, we ask the next question . . .
2) Is the expressive conduct protected?
Is the Expressive Conduct Protected?
• United States v. O’Brien (1968)
• Texas v. Johnson (1989)
Is the Expressive Conduct Protected?
• To determine answer, we look at government’s intent– If the regulation is aimed at the expressive content
itself, we apply strict scrutiny
– If the regulation is not aimed at the expressive conduct, we apply intermediate scrutiny (“The O’Brien Test”)
The O’Brien Test
• Is the regulation within Constitutional power of the government?
• Does the regulation further an important or substantial government interest?
• Is the government interest unrelated to the suppression of free expression?
• Is the incidental restriction of expression no greater than essential?
Flag Burning
Nude Dancing
Hate Speech
• Chaplinsky v. New Hampshire (1942)
• RAV v. St. Paul (1992)
“Intimidating Speech”
• Virginia v. Black (2003)
Picketing
Picketing
“Simply put, the church members had the right to be where they were.” --Chief Justice John Roberts