PastPaperHero | 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, including:

How courts decide whether conduct is expressive and therefore within the ambit of the First Amendment.
How to distinguish regulations targeting the communicative impact of conduct from those targeting non-communicative effects.
How to apply the intermediate-scrutiny O'Brien test to content‑neutral regulations of expressive conduct.
How to recognize when strict scrutiny, rather than the O'Brien test, governs a regulation of conduct.
How expressive‑conduct questions interact with public‑forum and time, place, and manner doctrine.
How to spot and analyze vagueness, overbreadth, and prior restraint problems in expressive‑conduct regulations.
How to structure a step‑by‑step analysis of expressive‑conduct fact patterns on the MBE.

It also explains the O'Brien test and its application so you can 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, with a focus on the following syllabus points:

Distinguishing expressive conduct (symbolic speech) from pure speech.
Identifying when conduct is sufficiently communicative to trigger First Amendment analysis.
Distinguishing content-based from content-neutral regulations of expressive conduct.
Applying the intermediate-scrutiny O'Brien test to content‑neutral regulations of expressive conduct.
Recognizing when a regulation targets the communicative impact of conduct (strict scrutiny).
Relating expressive-conduct problems to time, place, and manner doctrine and forum analysis.
Analyzing common examples such as flag burning, draft card burning, public nudity regulations, and restrictions on signs or demonstrations.
Spotting vagueness, overbreadth, and prior restraints in expressive‑conduct 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.

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.
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.
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.
A state statute makes it a misdemeanor to engage in “any conduct in a public place that is disrespectful toward the flag.” A protester is arrested for burning a flag during a political rally. What is the strongest constitutional objection?
1. The statute is vague and content-based.
2. The statute violates the Establishment Clause.
3. The statute is an unreasonable time, place, and manner restriction.
4. The statute regulates unprotected fighting words.
A city requires a permit for any parade using amplified sound downtown. The permitting official may deny a permit whenever an event “would be controversial or upsetting to the public.” A protest group is denied a permit on that basis. The best characterization of this scheme is:
1. A reasonable, content-neutral time, place, and manner regulation.
2. A valid prior restraint because it serves a significant interest.
3. An unconstitutional prior restraint granting unbridled discretion.
4. A valid restriction because controversial protests are disruptive.

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, staging a silent sit‑in, or kneeling during the national anthem.

However, the government generally has greater latitude to regulate conduct than to regulate pure speech. When governmental regulation affects expressive conduct, the constitutionality of the regulation often turns on whether the regulation is aimed at:

The communicative impact of the conduct (its message); or
Some non‑communicative aspect of the conduct (its physical consequences, such as noise, obstruction, fire risk, or nudity).

The Supreme Court has emphasized that the First Amendment is not a general protection for all conduct. It protects conduct only when that conduct is sufficiently communicative.

Key Term: Expressive Conduct
Conduct that is intended to convey a particular message, and where the likelihood is great that observers will understand that message. Also known as symbolic speech.

Key Term: Symbolic Speech
Another label for expressive conduct—nonverbal actions (such as burning a flag or wearing an armband) undertaken to communicate an idea.

Courts use a simple working test (from cases such as Spence v. Washington) to decide whether conduct is expressive:

Did the actor intend to convey a particularized message? and
Under the circumstances, was it likely that observers would understand that message?

If both are satisfied, the conduct is expressive and receives some First Amendment protection. On the MBE, fact patterns typically make it clear that the conduct is being used to communicate a message, so you can safely treat it as expressive.

Not all harmful or offensive conduct counts as protected expression. For example, assaulting someone to “send a message” about politics does not turn the assault into protected expressive conduct. The First Amendment does not shield independently illegal acts, such as violence or property destruction, merely because the actor claims an expressive purpose.

At the same time, some conduct sits on the border. Nude dancing, cross burning, and wearing gang colors have expressive elements but also create non‑expressive effects (public indecency, intimidation, or crime risks). Those are exactly the kinds of scenarios where you must be able to distinguish whether the government is targeting the message or some non‑speech harm, and then choose the correct level of scrutiny.

Key Term: Content-Based Regulation
A law that regulates speech or expressive conduct because of the topic, idea, or message being expressed.

Key Term: Content-Neutral Regulation
A law that regulates the time, place, or manner of expression, or some non‑communicative aspect of conduct, without regard to the message being expressed.

The key analytical move in expressive‑conduct questions is to classify the regulation:

If it is content-based—aimed at the message—strict scrutiny applies.
If it is content-neutral and burdens expression only incidentally—usually by regulating conduct—intermediate scrutiny under the O'Brien test applies.

Expressive‑conduct problems also interact closely with public‑forum doctrine and time, place, and manner (TPM) rules. You must be able to combine forum analysis, content‑based/content‑neutral analysis, and O'Brien/TPM tests in a single answer.

Key Term: Time, Place, and Manner Restriction
A content‑neutral rule that limits when, where, or how expression may occur (e.g., restricting amplified sound at night), but does not depend on the content of the message.

Determining Whether Conduct Is Communicative

Although the Spence test asks for a “particularized” message, modern doctrine is generous. The message need not be precise or detailed; what matters is that observers would understand that a message of some kind—e.g., dissent, solidarity, protest, celebration—is being conveyed.

Commonly expressive actions include:

Wearing symbols (armbands, ribbons, T‑shirts, pins).
Marching, parading, picketing.
Burning objects (flags, effigies, statutes, draft cards).
Silent vigils or sit‑ins.
Saluting or refusing to salute a flag.
Kneeling or turning one’s back during an anthem or ceremony.

Conduct is usually not expressive when:

There is no intent to communicate (e.g., drunken vandalism).
No reasonable observer would perceive a message (e.g., random littering).
The actor’s “message” depends on private explanations not evident from the conduct itself.

On the MBE, if the fact pattern emphasizes that the actor is trying to “protest,” “send a message,” “draw attention to,” “express dissatisfaction,” or “show support,” you should treat the conduct as expressive.

Some expressive conduct nonetheless falls into categories of unprotected or low‑value speech:

True threats, incitement of imminent lawless action, and fighting words can be regulated or punished even though they involve expressive elements.
Obscenity, defamation, and certain forms of commercial speech are analyzed under separate doctrines, not under O'Brien.

Key Term: True Threats
Statements or conduct meant to communicate a serious intent to commit unlawful violence against a particular person or group. True threats are a category of unprotected speech and may be prohibited even though they involve expressive elements.

True threats matter because some conduct—such as cross burning on a Black family’s lawn—can be both expressive and a true threat. In that situation, the government may punish the threatening conduct without satisfying strict scrutiny applicable to protected speech, as long as it is genuinely targeting the threatening aspect rather than the political message in the abstract.

Forum Basics: Where the Conduct Occurs

The constitutional standard also depends on where the expressive conduct occurs.

Key Term: Public Forum
Government property, such as streets, sidewalks, and parks, traditionally open to expressive activity. Content‑neutral time, place, and manner regulations are permitted here if properly tailored.

Key Term: Limited Public Forum
Government property opened for expressive use only for certain groups or topics (e.g., a school auditorium opened for student clubs). The government can limit access by subject or speaker type, but may not discriminate by viewpoint.

Key Term: Nonpublic Forum
Government property not traditionally open to public expression (e.g., jails, military bases, government offices). Regulations need only be reasonable and viewpoint neutral.

Expressive conduct may occur in:

Traditional public forums: streets, sidewalks, parks.
Designated or limited public forums: university meeting rooms opened for student groups, city theaters temporarily opened for public events, school bulletin boards opened for student postings.
Nonpublic forums: government offices, courthouses (beyond the sidewalk), military bases, jails, airport terminals.

Forum classification matters because:

In a traditional public forum, a total ban on expressive conduct is highly suspect, and content‑based restrictions must satisfy strict scrutiny.
In a limited public forum, the government may limit use by topic or group (e.g., “only student organizations”) but must remain viewpoint neutral.
In a nonpublic forum, the government may impose broad, even categorical, restrictions on expressive conduct so long as they are reasonable in light of the property’s purpose and do not discriminate by viewpoint.

On the MBE, the facts usually identify streets, sidewalks, and parks as classic public forums and highlight that an ordinance applies “on all city streets” or “in public parks.” That should cue you to consider time, place, and manner analysis in addition to expressive‑conduct doctrine.

Identifying Expressive Conduct

The First Amendment does not shield all conduct. The threshold question is whether the conduct is sufficiently communicative to count as expressive conduct.

Typical examples that are expressive:

Burning a draft card to protest a war.
Burning or desecrating a flag to convey dissent.
Wearing black armbands to express opposition to a conflict.
Silent sit‑ins or marches protesting government policy.
Wearing clothing with political slogans.
Kneeling during a national anthem to protest racial injustice.
Staging a die‑in to dramatize deaths from gun violence.
Carrying a particular symbol (e.g., a peace sign or religious symbol) in a march.

The Court has repeatedly treated such acts as within the “speech” branch of the First Amendment: Tinker (armbands in schools), Texas v. Johnson (flag burning), and Cohen v. California (“F*** the Draft” jacket).

Typical examples that are not expressive (or are treated as low‑value):

Random destruction of property with no intended communicative message.
Purely private nudity with no symbolic meaning (though some nude dancing is treated as expressive).
Routine rule violations (e.g., ignoring a fire code) not used to send a message.
Violent attacks or true threats: these are independently unlawful acts, not protected expression.
Destruction of evidence, even if claimed as “protest.”

A recurring borderline area is erotic dance and public nudity. The Court has accepted that nude dancing has expressive elements, but it has also allowed content‑neutral public‑nudity regulations to apply under intermediate scrutiny. For exam purposes, treat nude dancing as expressive conduct but recognize that general nudity bans are typically upheld under O'Brien.

On the MBE, if the fact pattern emphasizes that the actor is trying to “protest,” “send a message,” “draw attention to,” or “express” a particular idea, you should treat the conduct as expressive—even if the conduct is also shocking or unpopular.

Remember:

The fact that some observers disagree with the message does not remove First Amendment protection.
The fact that the government finds it offensive is not enough to justify regulation.

State Action and Expressive Conduct

All First Amendment problems require state action—some government entity must be regulating or punishing the conduct. Private malls, private universities, or private homeowners’ associations limiting expressive conduct usually do not trigger the First Amendment, unless there is significant government involvement or the jurisdiction has an unusual state constitutional rule (not tested on the MBE).

If a question presents purely private discipline—e.g., a private employer fires an employee for expressive conduct—do not analyze it under the First Amendment unless the facts clearly show government action.

The Analytical Roadmap

When you see conduct that might be expressive:

Is there state action?
If not, the First Amendment is not implicated.
Is the conduct expressive?
Look for intent to convey a message and likelihood observers would understand that message.
What is the forum?
Public street, park, school, government building interior, military base, etc.
Is the regulation content-based or content-neutral?
Does it hinge on the message or subject matter?
Choose the standard:
- Content‑based → strict scrutiny.
- Content‑neutral conduct regulation → O'Brien intermediate scrutiny.
- Content‑neutral TPM in public forum → TPM intermediate scrutiny.
- Nonpublic forum → reasonable and viewpoint neutral.
Check for other problems:
Vagueness, overbreadth, prior restraint, or true threats.

Keeping that sequence in mind sharply reduces confusion when multiple doctrines overlap.

Distinguishing Regulation Types

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

Regulation Aimed at Communicative Impact (Content-Based)

If the government regulation is aimed at the communicative impact of the expressive conduct—its message—the regulation is content-based. Content‑based regulations of expression are subject to strict scrutiny. The government must show that the regulation is necessary (or narrowly tailored) to achieve a compelling governmental interest and that it is the least restrictive means or very close to it.

In practice, content-based regulations almost always fail this test in the expressive‑conduct context.

Key Term: Viewpoint Discrimination
A particularly egregious form of content‑based regulation in which the government allows speech on a subject but favors one side of a debate over another (e.g., permitting pro‑war but not anti‑war messages). It is almost always unconstitutional.

Classic examples:

A law prohibiting the “desecration” of the American flag to prevent disrespect for the flag. This singles out expressive mistreatment of the flag because of the message of disrespect. It is content-based and fails strict scrutiny. (Texas v. Johnson; flag burning protected.)
A rule allowing only patriotic messages on city‑owned flagpoles, but prohibiting flags expressing dissent about government policies. This is viewpoint discrimination and invalid.
A statute barring picketing within 500 feet of a foreign embassy if the picket brings the foreign government into “odium or disrepute.” This requires an official to evaluate the message; it is content-based and invalid.
A state highway rule banning “graphic depictions of violence” on roadside billboards. That rule targets a particular subject matter (violent images) and must satisfy strict scrutiny, not intermediate scrutiny.

When analyzing MBE fact patterns:

Ask whether enforcement officials must read or interpret the message to know whether the law applies. If so, it is almost certainly content-based.
Ask whether the law targets particular ideas or subject matter (e.g., “violent images,” “political messages,” “messages critical of the government”). That is also content-based.
Watch for underinclusive laws: if a law bans burning flags “to express disapproval” but not burning flags in respectful ceremonies, that asymmetry reveals a content‑based purpose.

Once you identify a content-based regulation, strict scrutiny applies:

Compelling interest: protecting national security, preventing imminent lawless action, or combating invidious discrimination can be compelling; “avoiding offense,” “maintaining respect for the flag,” or “preserving the dignity of the government” are not.
Narrow tailoring: the law must not be overinclusive or underinclusive in a way that suggests the government is really targeting speech. Broad bans almost always fail.

Content‑based restrictions cannot be rescued by relabeling them as “time, place, and manner” or “public safety” measures. Courts look to the actual operation and purpose, not the government’s label.

Regulation Aimed at Non‑Communicative Impact (Content-Neutral)

If the government regulation is aimed at the non‑communicative impact of the conduct—such as fire hazards, obstruction of sidewalks, excessive noise, or public nudity—it is generally content‑neutral. When such a regulation incidentally burdens expressive conduct, courts apply the intermediate‑scrutiny O'Brien test (discussed in detail below).

Examples of content‑neutral purposes:

Preventing fires by banning all open flames on certain government property.
Reducing visual clutter and safety risks by prohibiting all posters on utility poles, regardless of message.
Protecting public decency by banning public nudity in all locations, whether or not the nudity is expressive (e.g., nude dancing in clubs).
Controlling noise by limiting use of sound‑amplifying equipment in residential areas at night.
Keeping sidewalks passable by limiting large stationary structures (e.g., tents or sleeping encampments) in parks.

In these situations, the law is not aimed at what is being communicated; it is aimed at the effects of the conduct. The fact that some people use the conduct for expressive purposes does not convert a genuinely content‑neutral regulation into a content‑based one.

The Supreme Court has upheld, for example:

A prohibition on public nudity applied to nude dancing, because the interest in public order and morality was unrelated to suppressing erotic expression.
Regulations requiring sound amplification in a public park to be controlled by city technicians to avoid excessive volume, applied equally to all performers regardless of musical or political content (Ward v. Rock Against Racism).

Expressive Conduct vs. Time, Place, and Manner Restrictions

Many regulations that burden expressive conduct can be analyzed in either of two ways:

As a time, place, and manner (TPM) restriction on speech in a public forum; or
As a content‑neutral regulation of conduct under the O'Brien test.

Both approaches involve a form of intermediate scrutiny and often produce the same outcome. For exam purposes:

Use TPM analysis when the law regulates where or when expression (including expressive conduct) may occur in a traditional public forum (streets, sidewalks, parks).
Use the O'Brien test when the law directly regulates conduct that sometimes carries a message (such as burning, camping, marching, or nudity), and the burden on expression is incidental.

A typical TPM test in a public forum asks whether the regulation:

Is content‑neutral (on its face and as applied);
Is narrowly tailored to serve a significant governmental interest; and
Leaves open ample alternative channels for communication.

Notice the close parallel to O'Brien, which asks if the law furthers an important interest unrelated to speech and burdens no more expression than essential.

In nonpublic forums (e.g., military bases, airport terminals, government office interiors), the government may restrict expressive conduct more freely so long as its rules are reasonable in light of the property’s purpose and are not viewpoint discriminatory. A ban on all demonstrations inside a courthouse is likely valid as a reasonable, viewpoint‑neutral rule in a nonpublic forum.

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 governmental interest unrelated to suppressing expression.

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

It is within the constitutional power of the government;
It furthers an important or substantial governmental interest;
The governmental interest is unrelated to the suppression of free expression; and
The incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest (i.e., it is narrowly tailored but need not be the least restrictive means).

Key Term: O'Brien Test
A four‑part intermediate‑scrutiny standard used to evaluate content‑neutral regulations that incidentally burden expressive conduct: the law must be within government power, serve an important interest unrelated to suppressing expression, and burden expression no more than necessary.

Breaking down each prong:

Within constitutional power: This is almost always satisfied. Congress and state legislatures have broad power to regulate public safety, property, and administration (e.g., maintaining draft records, preventing fires, keeping parks open for all).
Important or substantial governmental interest: Interests such as maintaining the integrity of government programs, preserving public safety, controlling traffic, protecting property, and promoting public health and decency are routinely treated as important or substantial.
Interest unrelated to suppression of expression: This is the key prong. Ask: Would the government pursue this law even if no one were communicating anything by the conduct?
- If the answer is yes (e.g., preventing fires, controlling litter, maintaining draft records), the interest is unrelated to expression.
- If the real goal is to suppress a particular message (e.g., preventing disrespect for the flag), this prong fails.
Incidental restriction no greater than essential: The regulation must not burden expression more than reasonably necessary to achieve the interest. It need not be the absolute least restrictive alternative, but it cannot be gratuitously broad or drawn in a way that reveals hostility to certain messages. If there are obvious, less speech‑restrictive ways to achieve the same noncommunicative ends, that is evidence against narrow tailoring.

The O'Brien test is functionally a form of intermediate scrutiny. Many laws survive if they genuinely target nonspeech harms and are reasonably tailored.

When O'Brien Does Not Apply

Do not apply O'Brien if:

The law is content-based on its face (e.g., prohibits only “disrespectful” flag burning); or
The government’s asserted non‑speech interest is actually a pretext for suppressing a message; or
The law only applies when conduct is expressive (e.g., “No burning of draft cards for the purpose of protesting military policy”).

In those situations, strict scrutiny applies because the regulation is aimed at the communicative impact of the conduct.

Worked Example 1.1

A city ordinance prohibits camping or sleeping overnight in public parks. A group of protesters sets up tents in a city park and sleeps there to dramatize the plight of the homeless. They are cited for violating the camping ordinance and challenge it on First Amendment grounds.

Answer:
The ordinance is likely constitutional as applied. Camping is expressive in this context, but the law applies regardless of any message. The city can assert substantial interests in sanitation, safety, and preserving parks for all, unrelated to suppressing any particular viewpoint. The ban is narrowly tailored: it targets overnight camping but leaves numerous alternative channels (daytime rallies, marches, leafletting). Applying O'Brien (or TPM analysis in a public forum), the regulation should be upheld.

Worked Example 1.2

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

Answer:
The statute is constitutional as applied. Burning the tax code is expressive conduct. However, the statute is content‑neutral: it bans all fires on courthouse property to protect safety and property, not to suppress anti‑tax messages. The government’s interest is substantial and unrelated to expression, and a ban on fires is no broader than necessary. The citizen can protest taxes in many other ways. The statute satisfies the O'Brien test.

Worked Example 1.3

A city ordinance provides: “It is unlawful to burn any flag in a public place if the burning casts the government or nation in a negative light.”

Answer:
This regulation is unconstitutional. Flag burning is expressive conduct. The ordinance explicitly targets burning that conveys a negative message about the government. That is viewpoint discrimination—a form of content‑based regulation. Strict scrutiny applies, and “avoiding offense” or maintaining respect for the government is not a compelling interest. The law fails and cannot be saved by O'Brien because it is not content-neutral.

Worked Example 1.4

A state bans public nudity in all public places, including stage performances, and enforces the law against an erotic dance club whose performers dance topless as part of a show they claim is expressive.

Answer:
The nudity ban is likely analyzed as a content‑neutral regulation of conduct under O'Brien. The law applies to all public nudity, not just erotic performances, and the state can assert a substantial interest in public order and morality unrelated to suppressing any particular message. The burden on expression (requiring minimal clothing) may be viewed as no greater than necessary. Under O'Brien, courts have generally upheld similar laws.

Worked Example 1.5

A city ordinance makes it a crime to wear any item of clothing displaying gang colors in public parks, regardless of the words or symbols on the clothing. The city justifies the law as a way to reduce gang violence.

Answer:
The law targets clothing based on its non‑communicative effects—gang intimidation and violence—rather than on any specific message. It is facially content‑neutral: it does not depend on what words or symbols are displayed, only on colors associated with gangs. The city can assert a substantial interest in public safety unrelated to suppressing expression. The tailoring question is close: if the city has evidence that the ban genuinely reduces violence and leaves other ways to express identity, O'Brien intermediate scrutiny may be satisfied. But if the law is both overinclusive (reaching non‑gang members) and underinclusive (ignoring other gang markers), it may fail the “no greater than essential” prong.

Worked Example 1.6

A federal statute prohibits “knowingly mutilating or destroying any draft card with the intent to protest government military policy.” O'Brien burns his draft card in protest and is prosecuted under this statute.

Answer:
Unlike the statute in the real O'Brien case, this hypothetical statute is explicitly content‑based. It punishes destruction of draft cards only when done to protest government policy. That targets the communicative aspect of the conduct. Strict scrutiny applies. Although preserving draft records is an important interest, that interest is not served by punishing destruction only when accompanied by a particular message; that underinclusiveness reveals a purpose to suppress dissent. The statute is unconstitutional.

Worked Example 1.7

A city bans “all sound amplification equipment” on public streets at any time. Protesters who wish to use bullhorns during a daytime march challenge the ban.

Answer:
This is a content‑neutral regulation of the manner of expression. The city has significant interests in controlling excessive noise, but a complete ban on amplification is broader than necessary. Narrower rules—such as limiting decibel levels or restricting amplification in residential areas at night—would serve the same interests with less impact on speech. Under either O'Brien or time, place, and manner analysis, the law likely fails the tailoring requirement.

Worked Example 1.8

A state university prohibits all demonstrations inside classroom buildings but allows demonstrations on outdoor campus sidewalks and in a student commons. A student group challenges the indoor ban as violating their expressive‑conduct rights.

Answer:
University classroom buildings are at most limited public forums, and the interiors during class hours often function as nonpublic forums. The ban is content‑neutral and reasonable in light of the property’s educational purpose: demonstrations inside classrooms would disrupt teaching. Students retain ample alternative channels outdoors and in designated areas. In a nonpublic or limited public forum, a reasonable, viewpoint‑neutral rule like this is valid without resort to O'Brien.

Worked Example 1.9

A state statute bans cross burning “with the intent to intimidate any person.” It does not prohibit cross burning at public rallies or parades that are not directed at specific individuals. A defendant is prosecuted for burning a cross on a Black family’s front lawn.

Answer:
Cross burning is expressive, but burning a cross on a family’s lawn with intent to intimidate is a classic example of a true threat. The statute targets the threatening conduct, not the racist ideology as such. True threats are unprotected, so the statute does not need to satisfy strict scrutiny. The law is focused on intimidation and is viewpoint neutral on its face (it would apply to threatening cross burning regardless of ideology). The conviction is likely constitutional.

Worked Example 1.10

A public high school dress code prohibits students from wearing any clothing with “political messages.” A student is suspended for wearing a T‑shirt reading “Save the Planet.” She sues, claiming a violation of her expressive‑conduct rights.

Answer:
Wearing a political T‑shirt is expressive conduct. The dress code is facially content‑based because it singles out “political messages.” In the public‑school context, student speech can be regulated more than adult speech, but content‑based viewpoint‑neutral rules still raise serious constitutional problems. The school’s generic interest in “avoiding controversy” is not compelling. The policy is both content‑based and overbroad. Strict scrutiny applies and is unlikely to be satisfied; the rule is probably unconstitutional as applied.

Comparing O'Brien, Time–Place–Manner, and Strict Scrutiny

Different doctrines often appear side by side in expressive‑conduct questions. Keep the standards straight:

Strict Scrutiny (Content-Based Regulations):
- Triggered when a regulation targets speech or conduct because of its message.
- Government must show the law is necessary (or narrowly tailored) to achieve a compelling interest.
- The law must be the least restrictive means or very close to it.
- In expressive‑conduct cases, such laws are almost always invalid (e.g., bans on “disrespectful” flag burning, prohibitions on negative messages about the government).
O'Brien Test (Content-Neutral Regulation of Conduct):
- Triggered when the law regulates conduct for reasons unrelated to expression, and expression is only incidentally burdened.
- Government must show a substantial or important interest unrelated to suppressing expression, and tailoring “no greater than essential.”
- Easier to satisfy than strict scrutiny; many such laws are upheld (public‑nudity bans, no‑fire rules, neutral camping bans).
Time, Place, and Manner (TPM) Regulations in Public Forums:
- Triggered when the law regulates where, when, or how expression may occur in a public forum, but not its content.
- Must be content‑neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication.
- Example: Restricting demonstrations on sidewalks near a courthouse during specific hours to prevent obstruction and ensure access.

Despite slight differences in wording, both the O'Brien test and TPM analysis amount to intermediate scrutiny. The exam will usually signal which test to use by:

Emphasizing that the law regulates conduct (apply O'Brien); or
Emphasizing a public forum and limits on where/when demonstrations or signs may occur (apply TPM).

How to Choose the Right Test on the MBE

Use this simplified decision path:

Does the law single out particular messages, topics, or viewpoints?
- Yes → Content‑based → Strict scrutiny.
If not, does it regulate who, where, when, or how loud?
- Yes, in a traditional public forum → TPM intermediate scrutiny.
If not, does it regulate conduct that sometimes is expressive (burning, camping, nudity) regardless of message?
- Yes → O'Brien intermediate scrutiny.
Is the property a nonpublic forum (e.g., jail, military base, government office interior)?
- Yes → Reasonableness plus viewpoint neutrality.

Exam Warning

Do not confuse expressive conduct with pure speech. While both receive First Amendment protection, regulations of conduct that incidentally affect expression are reviewed under intermediate scrutiny (usually O'Brien), whereas regulations aimed directly at the content or viewpoint of expression trigger strict scrutiny.

Misidentifying the type of regulation or applying the wrong test is a common MBE error.

Also, avoid being distracted by attractive but irrelevant doctrines:

The Privileges or Immunities Clause of the Fourteenth Amendment is almost never the right answer in a modern expressive‑conduct question.
Obscenity, defamation, and fighting words are distinct categories of low‑value or unprotected speech with their own tests; do not apply those standards to classic symbolic‑speech fact patterns like flag burning or silent protests.
Commercial speech (ads and economic proposals) has its own intermediate scrutiny test; it is not the same as expressive‑conduct analysis under O'Brien.

Vagueness, Overbreadth, and Prior Restraints in Expressive-Conduct Cases

Expressive‑conduct regulations, like other speech regulations, can also be challenged on vagueness, overbreadth, and prior restraint grounds. These doctrines provide independent reasons to strike down laws, even when a regulation might otherwise be content‑neutral.

Key Term: Vagueness
A law is vague if people of common intelligence must guess at its meaning and differ as to its application, so it fails to give fair notice of what is prohibited and invites arbitrary enforcement.

Key Term: Overbreadth
A law is overbroad if it punishes a substantial amount of protected speech or expressive conduct in relation to its plainly legitimate sweep.

Examples of vagueness:

A statute making it a crime to engage in any conduct “demeaning to the flag” is both content‑based and vague: no clear standard tells citizens what is forbidden.
A rule banning “annoying,” “offensive,” or “upsetting” conduct in public forums, without further definition, invites arbitrary enforcement and guesswork.

Examples of overbreadth:

A law banning “all nudity in any entertainment visible from a public place” may be overbroad if it prohibits a wide range of artistic performances that pose no threat to the government’s asserted interests.
A city’s ban on “all signs on public property” may be overbroad if less restrictive measures could address visual clutter and safety (for example, limiting size or duration).

Key Term: Prior Restraint
An administrative or judicial order that prevents speech or expressive conduct before it occurs (e.g., licensing schemes that allow officials broad discretion to deny permits for demonstrations).

Prior restraints are highly disfavored and must include narrow, objective standards and prompt judicial review. In expressive‑conduct contexts, permit schemes for parades or demonstrations can function as prior restraints if they give officials unbridled discretion to deny permits based on the message.

To evaluate a permit scheme affecting expressive conduct in a public forum, ask:

Are the criteria content‑neutral and objective (e.g., traffic, safety, scheduling conflicts), or do they allow denial based on the organizer’s message?
Is there a requirement for prompt decision and an avenue for prompt judicial review?
Does the scheme function as a de facto ban on protests (e.g., excessive fees, impossible notice requirements)?

Worked Example 1.11 (permit scheme and expressive conduct)

A city ordinance requires a permit for any march in city parks. The ordinance authorizes the parks commissioner to deny a permit whenever “the proposed event would be harmful to the public interest or likely to generate controversy.” The commissioner denies a permit for an antiwar march but has granted permits for charity walks and music festivals.

Answer:
The ordinance is unconstitutional. It is a prior restraint vesting broad discretion in a single official, with criteria (“harmful to the public interest,” “controversy”) that are vague and invite content and viewpoint discrimination. In practice, the commissioner has favored noncontroversial events and excluded dissenting speech. Permit schemes for expressive conduct must have narrow, objective standards and cannot turn on the likely content or popularity of the message.

On the MBE, if a regulation is poorly defined or sweeps in clearly protected expressive conduct far beyond the government's interest, consider whether vagueness or overbreadth is a better ground of attack in addition to the O'Brien/strict‑scrutiny analysis.

Interaction with Forum Doctrine

Vagueness, overbreadth, and prior‑restraint problems are especially serious in traditional public forums, where the First Amendment demands robust protection. A vague ban on “offensive demonstrations” in a public park is far more suspect than a vague rule governing expressive conduct inside a secure military facility.

Even in nonpublic forums, however, viewpoint discrimination is forbidden. A regulation that allows pro‑government demonstrations inside a government building but forbids anti‑government demonstrations is unconstitutional viewpoint discrimination, regardless of whether the building is a nonpublic forum.

Key Point Checklist

This article has covered the following key knowledge points:

Expressive conduct (symbolic speech) is conduct intended to convey a message that observers are likely to understand; it receives First Amendment protection, though often through intermediate rather than strict scrutiny.
The first step in any problem is to determine whether the conduct is expressive; if not, the First Amendment may not apply.
All First Amendment claims require state action; purely private restrictions on conduct usually do not trigger constitutional analysis.
The core analytical question is whether the regulation is content-based (targeting the message) or content-neutral (targeting non‑communicative effects).
Content‑based regulations, including viewpoint discrimination, are subject to strict scrutiny and almost always invalid in expressive‑conduct cases.
Content‑neutral regulations of conduct that incidentally burden expression are evaluated under the O'Brien test, a form of intermediate scrutiny.
The O'Brien test requires that the regulation be within governmental power, further a substantial interest unrelated to suppressing expression, and burden expression no more than essential.
Time, place, and manner regulations in public forums are another form of intermediate scrutiny, closely related to O'Brien, and must be content‑neutral, narrowly tailored, and leave alternative channels of communication.
Forum status matters: traditional public forums (streets, sidewalks, parks) receive the most protection; limited public forums allow subject‑matter limits; nonpublic forums (jails, military bases, office interiors) permit broader but still viewpoint‑neutral limits on expressive conduct.
Flag burning is protected expressive conduct; bans on “disrespectful” flag treatment are content-based and fail strict scrutiny.
Laws prohibiting destruction of governmental documents (like draft cards) or banning fires on government property can be upheld under O'Brien when they further substantial non‑communicative interests.
Vagueness, overbreadth, and prior restraint doctrines provide additional tools to attack poorly drafted or excessively broad expressive‑conduct regulations on the MBE.
True threats and independently unlawful conduct (violence, property destruction) are not protected by the First Amendment even if done with expressive motives.
On MBE questions, the seducer choice is often an inapplicable doctrine (e.g., Privileges or Immunities, obscenity, commercial speech). For expressive conduct, focus on content‑based vs content‑neutral, forum analysis, and O'Brien.

Key Terms and Concepts

Expressive Conduct
Symbolic Speech
Content-Based Regulation
Content-Neutral Regulation
Viewpoint Discrimination
Time, Place, and Manner Restriction
Public Forum
Limited Public Forum
Nonpublic Forum
O'Brien Test
Vagueness
Overbreadth
Prior Restraint
True Threats

Individual rights - Regulation of expressive conduct