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Symbolic Expression

Symbolic Expression. 1 st Amendment: “Congress shall make no law . . . abridging the freedom of speech” Says nothing about government’s ability to regulate conduct – and, in fact, gov’t can more easily regulate actions than it can speech.

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Symbolic Expression

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  1. Symbolic Expression • 1st Amendment: “Congress shall make no law . . . abridging the freedom of speech” • Says nothing about government’s ability to regulate conduct – and, in fact, gov’t can more easily regulate actions than it can speech. • But can government officials regulate all conduct regardless of the 1st Amendment? • Surely a rigid distinction between speech & conduct is unworkable. • On the other hand we can’t protect all conduct under the 1st Amendment • Key – must come up with a method for determining when conduct deserves 1st Amendment protection

  2. When is conduct expressive? – Saggy Pants hypo • Is Roy’s wearing of Jayhawks-style clothing “expressive” for 1A purposes? • Do policies regulating clothing choices always involve expressive choices – i.e., school uniform policies? Are students expressing themselves as in the hypo? • What factors are important to determining when conduct is expressive? • Are these factors exclusive – do art, music meet them? How are those forms of expression different from the Saggy Pants hypo? • What about an assassin who kills the President as a symbolic form of protest and DOES meet these factors, should they even be able to raise the 1A as a defense?

  3. O’Brien – Intermediate Scrutiny Test for Expressive Conduct • Is the regulation w/in the constitutional power of gov’t? • Does it further an important or substantial gov’t interest? • Is the gov’t interest unrelated to the suppression of free expression? • Is the regulation no greater than essential to the furtherance of the gov’t interest?

  4. O’Brien – Analyzing the Intermediate Scrutiny Factors • Is the regulation w/in the constitutional power of gov’t? • It is rarely going to be the case that regulations fall outside the power of the government • Does it further an important or substantial gov’t interest? • How “substantial/important” must the interest be? How substantial was it in O’Brien

  5. O’Brien – Analyzing the Intermediate Scrutiny Factors • Is the government interest unrelated to suppressing free expression? • Law that suppresses content fails prong 3. Look to face of law and reasons given for its enactment to see if it’s related to content. • SCT ignores legislative motive to determine whether an otherwise neutral law regulating conduct is aimed at suppressing free expression – does this make sense w/ symbolic conduct? • Is the regulation no greater than essential to further the govt’s interest? • How carefully tailored is the law in O’Brien? • SCT doesn’t require that the regulation be the narrowest possible – need only be a reasonable fit between means and end.

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