Conduct as Speech

Question 1

O’Brien v. United States (1968)

Answer 1

Conduct as Speech, Convicted for burning draft card in violation of federal law which was upheld. O’Brien Test Intermediate Scrutiny: When speech & non-speech elements in conduct, regulation is justified if 1) Within constitutional power, 2) Interest unrelated to suppressing expression, 3) Interest is important/substantial, and 4) Incidental limitation on speech/expression is no greater than essential.

Question 2

Arcara v. Cloud Books (1986)

Answer 2

Conduct as Speech, Adult Bookstore closed as a place of prostitution. Upheld under rational basis review (not O’Brien Test) because sexually explicit activity does not constitute protected expression.

Question 3

Clark v. Community for Creative Non-Violence (1984)

Answer 3

Conduct as Speech, Demonstration for the homeless wanted to include sleeping in tents in the park and permit was denied. Upheld under O’Brien Test as content-neutral and reasonable Time, Place, and Manner restriction.

Question 4

Texas v. Johnson (1989)

Answer 4

Conduct as Speech, Flag Burning, Texas wanted to avoid breach of the peace (Terminiello) and to preserve symbol of national unity (O’Brien). The second interest is related to suppression of free expression, failing O’Brien Test. Texas only forbid flag burning with a certain message, so it was content-based and failed strict scrutiny (as applied).

Question 5

United States v. Eichman (1990)

Answer 5

Conduct as Speech, Federal Flag Burning, Related to the Suppression of Free Expression (No Explicit Content-Based Limitation Unlike Texas Law), Failed Strict Scrutiny

Question 6

Holder v. Humanitarian Law Project (2010)

Answer 6

Conduct as Speech, Association, Federal law prohibited material support to terrorist organizations upheld (as applied). Passed Strict Scrutiny (not O’Brien Test) even though content-based. Government interest in combatting terrorism is hard to beat. Coordination legitimizes terrorist activities and money is fungible.

Question 7

Barnes v. Glen Theatre, Inc. (1991)

Answer 7

Conduct as Speech, Public nudity ban required female dancers to minimally cover themselves and was upheld under the O’Brien Test. Nude dancing is expressive conduct and the law was content-neutral. State interest in order and morality was sufficient.

Question 8

Expressions Hair Design v. Schneiderman (2017)

Answer 8

Conduct as Speech, New York General Business Law Prohibition of Credit Card Surcharges