Symbolic Speech (expressive conduct)
i) Content based => strict scrutiny
ii) Content neutral: Time place & manner restrictions must be
(a) Narrowly tailored
(b) To serve a significant gov’t interest
(c) And leave alternative channels to communicate the info.
b) Prior restraints & the press (NY Times v. US): the gov’t generally can’t get injunction against story or force press to get a permit for speech b/c this is a prior restraint & to sustain prior restraints we require a gov’t interest of the highest order.
i) Prior restraints are okay when: Nation at war, obscenity, inciting violence, defamation (but see NYT v. Sullivan)
c) Symbolic speech: where an actor engages in conduct intended to convey a message and the reasonably prudent receiver would understand the message. (e.g. burning draftcard, armband)
d) O’Brien test:
e) Indirect Restrictions on Speech (time, place, manner)
i) Content based? Go to track one; Content neutral (time, place, manner) =>
(1) Narrowly tailored
(2) To serve significant gov’t interest
(3) Ample alternative channels
=> regulation C’al
f) Symbolic Speech (conduct) restrictions:
i) Is it w/in the govt’s power to make these laws?
(1) Serves an important or substantial gov’t interest
(2) Incidental restriction on speech (unrelated to the suppression of free speech) (content netural) [if not, go to track one]
(3) No greater than is necessary?
g) Content based:
i) Compelling government interest
ii) Narrowly tailored
ex) Tinker: in trouble for wearing black armbands to school in protest of war; this was content based.
i) Can have prior restraints in public schools (not college) b/c compelling??
ii) Primary purpose of school newspaper is class, not speech
iii) Test: so long as restriction is rzbly related to legitimate pedagogical concerns => okay.
i) I have no idea when you use TPM test (as in Clark v. Community for Creative tenting ban) and when you use symbolic speech test (as in flag burn cases)
j) Flag burning cases: use O’Brien test for symbolic speech:
i) Within govt’s power?
ii) Further important gov’t interest?
iii) Unrelated to suppression of free speech (content neutral)? ? usually flag burning statutes fail here & go to track one (strict scrutiny)
iv) No greater than necessary?
We have located some similar legal questions and legal question categories. Check out these challenging questions that askquestions about First Amendment and are similar to What do you mean by Symbolic Speech?. Also, we have included a list of some of our more popular legal question categories. These categories are based on what everyone is asking and answering.