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Restricting Symbolic Expression: The O’Brien Test

Restricting Symbolic Expression: The O’Brien Test. Govt. regulation of symbolic speech is justified if: it is within the constitutional power of govt. if it furthers an important or substantial govt. interest if the govt. interest is unrelated to the suppression of the free expression

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Restricting Symbolic Expression: The O’Brien Test

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  1. Restricting Symbolic Expression: The O’Brien Test • Govt. regulation of symbolic speech is justified if: • it is within the constitutional power of govt. • if it furthers an important or substantial govt. interest • if the govt. interest is unrelated to the suppression of the free expression • if the incidental restriction on the alleged First Amendment freedom is no greater than essential to the furtherance of that interest

  2. Time, Place, and Manner Restrictions (TPM) • Recognizing the multi-dimensionality of messages (content and context) • Early position--Davis v. Mass. (1897) • public spaces held in trust • Hague v. CIO (1939)--the door opens, “no arbitrary suppression of free expression”, govt. does not have unlimited power to regulate expression in public fora

  3. Schneider v. State, (1939) + 3 others • 3 important elements • cities can regulate door-to-door speech, but must be reasonable • littering is an insufficient justification for limiting speech • look to alternatives (less restrictive means) • Cantwell v. Connecticut (1940)--preventing fraudulent solicitation for a religion does not justify a licensing system

  4. Contemporary TPM Tests • the restrictions are justified without reference to the content of the regulated speech--the content neutrality test • the restrictions are narrowly tailored to serve a significant government interest--the least restrictive means test, does it further the govt. interest, is the interest significant or substantial? • the restrictions leave open ample alternative channels for communication of the information--how much (and a what price) is acceptable, what if the medium is the message?

  5. What’s protected? demonstrations where the assembly meets marching in the streets airports What’s not protected? Courthouses/jailhouses blocking entrances to govt. buildings schools in session military bases mass transit advertising residential picketing TPM Restrictions in Use

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