Individual rights - Regulation of expressive conduct

Learning Outcomes

This article examines the First Amendment principles governing the regulation of expressive conduct, often termed symbolic speech. You will learn how courts distinguish between regulations targeting the communicative impact of conduct versus those aimed at non-communicative aspects. After reading this article, you will understand the O'Brien test and its application, enabling you to analyze government attempts to regulate conduct that conveys a message in MBE fact patterns.

MBE Syllabus

For the MBE, you are required to understand how the First Amendment applies to conduct intended to convey a message. This involves differentiating regulations based on their target (message vs. conduct) and applying the appropriate level of scrutiny. You should be prepared to:

  • Distinguish expressive conduct (symbolic speech) from pure speech.
  • Identify when a regulation targets expressive conduct.
  • Apply the intermediate scrutiny O'Brien test for content-neutral regulations of expressive conduct.
  • Recognize when a regulation targets the communicative impact of conduct, triggering strict scrutiny.
  • Analyze common examples like flag burning, draft card burning, and public nudity regulations.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. A city ordinance prohibits affixing any posters to public utility poles. A political activist is charged under the ordinance for stapling campaign posters to utility poles. The activist argues the ordinance violates her First Amendment rights. Which standard will the court most likely use to evaluate the ordinance?
    1. Rational basis review.
    2. Intermediate scrutiny under the O'Brien test.
    3. Strict scrutiny because political speech is involved.
    4. The test for obscenity under Miller.
  2. Expressive conduct (symbolic speech) receives:
    1. No First Amendment protection.
    2. The same level of protection as pure speech.
    3. Less protection than pure speech.
    4. Protection only if it involves political protest.
  3. Under the O'Brien test, a content-neutral regulation of expressive conduct is constitutional if, among other things, it:
    1. Is necessary to achieve a compelling government interest.
    2. Is viewpoint neutral and rationally related to a legitimate government interest.
    3. Furthers an important or substantial government interest unrelated to the suppression of free expression, and the incidental restriction on speech is no greater than essential.
    4. Only applies to commercial speech.

Introduction

The First Amendment protects not only written and spoken words ("pure speech") but also actions intended to convey a particular message or idea. This is known as expressive conduct or symbolic speech. Examples include wearing an armband to protest a war, burning a flag as a political statement, or engaging in certain forms of protest marches or demonstrations.

However, the government generally has greater latitude to regulate conduct than it does to regulate pure speech. When governmental regulation impacts expressive conduct, the constitutionality of the regulation often depends on whether the regulation is aimed at the communicative impact of the conduct or at some non-communicative aspect of the conduct.

Key Term: Expressive Conduct Actions intended by the actor to convey a particular message or idea, which may receive some First Amendment protection. Also known as symbolic speech.

Distinguishing Regulation Types

The critical first step in analyzing the constitutionality of a law regulating expressive conduct is determining the purpose of the regulation.

Regulation Aimed at Communicative Impact

If the government regulation is aimed at the communicative impact of the expressive conduct (i.e., its purpose is to suppress the message being conveyed), the regulation is content-based. Content-based regulations of expression are subject to strict scrutiny. The government must prove the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to that end. This standard is very difficult for the government to meet.

Example: A law prohibiting the desecration of the American flag is aimed at suppressing the message of disrespect often associated with flag burning. Such a law is content-based and subject to strict scrutiny. [See Texas v. Johnson]

Regulation Aimed at Non-Communicative Impact

If the government regulation is aimed at the non-communicative impact of the conduct (i.e., some legitimate regulatory purpose unrelated to the message), the regulation is generally considered content-neutral. Content-neutral regulations that incidentally burden expressive conduct are subject to a less demanding form of intermediate scrutiny, known as the O'Brien test.

The O'Brien Test

The leading test for content-neutral regulations affecting expressive conduct comes from United States v. O'Brien. In O'Brien, the defendant burned his draft card to protest the Vietnam War, violating a federal law prohibiting the knowing destruction or mutilation of draft cards. The Court upheld the conviction, finding the law constitutional because it served a substantial government interest unrelated to suppressing expression.

Under the O'Brien test, a government regulation that incidentally burdens expressive conduct is justified if:

  1. It is within the constitutional power of the government;
  2. It furthers an important or substantial governmental interest;
  3. The governmental interest is unrelated to the suppression of free expression; AND
  4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest (i.e., narrowly tailored).

Key Term: O'Brien Test The standard used to evaluate content-neutral government regulations that incidentally burden expressive conduct. The regulation must further a substantial government interest unrelated to suppressing expression and be narrowly tailored.

Worked Example 1.1

A city ordinance prohibits camping in public parks overnight. A group of homeless individuals sets up tents in a city park as a protest to draw attention to the lack of affordable housing and shelters. They are cited for violating the camping ordinance. The group challenges the ordinance under the First Amendment.

Is the ordinance likely constitutional as applied to the protesters?

Answer: Yes, likely constitutional. The ordinance appears content-neutral; it regulates the conduct of camping regardless of any message being conveyed. The city has a substantial interest in keeping parks safe, clean, and available for general public use, unrelated to suppressing expression. Prohibiting overnight camping is arguably narrowly tailored to achieve these interests, leaving ample alternative channels for the protesters to communicate their message (e.g., daytime protests, leaflets, lobbying). Applying the O'Brien test, the ordinance likely withstands scrutiny.

Worked Example 1.2

To protest high taxes, a citizen burns a copy of the Internal Revenue Code on the steps of the federal courthouse. He is charged under a statute prohibiting the ignition of any fire on federal courthouse property.

Is the statute constitutional as applied?

Answer: Yes, likely constitutional. Burning the tax code is expressive conduct. However, the statute prohibiting fires on courthouse property appears content-neutral, aimed at public safety and property protection, not the suppression of any particular message. The government has a substantial interest in preventing fires on its property. The ban on fires is narrowly tailored to this interest and leaves open many other ways for the citizen to express his views on taxes. The statute likely satisfies the O'Brien test. [Compare United States v. O'Brien (draft card burning)]

Comparing O'Brien and Strict Scrutiny

It is important to identify whether a regulation targets the message (triggering strict scrutiny) or the conduct's non-communicative aspects (triggering O'Brien).

  • Strict Scrutiny (Content-Based): Government must show the law is necessary to achieve a compelling interest. The law must be the least restrictive means available. (Very hard to meet).
  • O'Brien Test (Content-Neutral): Government must show the law furthers a substantial interest unrelated to suppressing expression and is narrowly tailored (restriction no greater than essential). (Easier to meet than strict scrutiny).

Exam Warning

Do not confuse expressive conduct with pure speech. While both receive First Amendment protection, the tests applied to government regulation differ significantly. Regulations of conduct that incidentally affect speech (O'Brien) are reviewed less strictly than regulations aimed directly at the content of speech (strict scrutiny). Misidentifying the type of regulation or applying the wrong test is a common error.

Key Point Checklist

This article has covered the following key knowledge points:

  • Expressive conduct (symbolic speech) is conduct intended to convey a message and receives First Amendment protection, though often less than pure speech.
  • The constitutionality of regulating expressive conduct depends on whether the regulation is content-based or content-neutral.
  • Content-based regulations (targeting the message) receive strict scrutiny.
  • Content-neutral regulations (targeting non-communicative aspects) that incidentally burden speech are analyzed under the O'Brien test (intermediate scrutiny).
  • The O'Brien test requires the regulation to be within government power, further a substantial government interest unrelated to suppressing expression, and be narrowly tailored.
  • Flag burning is protected symbolic speech; laws banning it based on its message fail strict scrutiny.
  • Draft card burning prohibitions can be upheld under O'Brien if furthering a substantial interest unrelated to the anti-war message (e.g., administrative needs of the draft system).

Key Terms and Concepts

  • Expressive Conduct
  • O'Brien Test
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