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