The First Amendment (Expressive Conduct)

Question 1

Step 1: Is this Expressive Conduct?

Answer 1

Is Conduct Communicative?
If yes→ step 2.
If no→ RBR

General Rule: When determining whether conduct is communicative, or deserving of First Amendment protections, court should consider:
(1) Whether “an intent to convey a particularized message is present (subj) and;
(2) Whether, given the surrounding circumstances, the likelihood was great that the message would be understood by those who viewed it. (Obj).
Spence v. Washington

Question 2

Step 2: Is regulation purpose to restrict the message?

Answer 2

If Yes, Is the Purpose of the Restriction to Suppress the Message Being Communicated? If yes→ content-based → SS
If No → Step 3

When government regulation of non-verbal communication is related to the suppression of free expression, then regulation is content-based. Strict scrutiny rather than the O’Brien test should be applied

In Texas v. Johnson, a state law that criminalized the desecration of a flag was unconstitutional. Texas’ interests for upholding the law were preventing breach of peace and preserving the flag as a symbol of national unity. The Court held that the first interest was inapplicable because there was no disturbance of peace due to Johnson’s flag burning. The second interest, however, was related to the suppression of expression and the statute was determined to be an unconstitutional content-based restriction and did not survive strict scrutiny.

Question 3

Buckely v. Valeo

Answer 3

In Buckley v. Valeo, a federal limitation on campaign donations by individuals was deemed a regulation aimed at suppressing the message being communicated, but the Court upheld the limitation because it accepted that limiting corruption was a compelling government interest. However, it decided to strike down the limitation on individual expenditures on candidates’ own campaigns because it was not narrowly tailored to limiting corruption.

Question 4

Citizens United v. FEC

Answer 4

In Citizens United, the Court upheld corporations’ ability to engage in electioneering activities using its general treasury funds. The court held that spending on elections is a form of core political speech, and subject to strict scrutiny.

Question 5

Step 3: The O’Brien Test, can the gov regulate?

Answer 5

If Yes → Gov Can Regulate If No → Regulation Struck Down

The government may regulate conduct that communicates (i.e, non verbal speech or symbolic conduct) if:
1. It is within the constitutional power of the government
2. It furthers an important or substantial government interest
3. The government interest is unrelated to the suppression of free expression (i.e., interest cannot be suppression of the communicative message)
4. The incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest

Question 6

Buckley v. Valeo

Answer 6

In Buckley v. Valeo, a federal limitation on campaign donations by individuals was deemed a regulation aimed at suppressing the message being communicated, but the Court upheld the limitation because it accepted that limiting corruption was a compelling government interest. However, it decided to strike down the limitation on individual expenditures on candidates’ own campaigns because it was not narrowly tailored to limiting corruption.

Question 7

United States v. O’Brien

Answer 7

In the United States v. O’Brien, the Court held that a federal law criminalizing anyone who destroys their draft card was constitutional. The government has a legitimate and substantial interest for making sure that draft cards are intact so they can identify people and are unrealated to suppression of free expression.