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Flashcards in Symbolic Speech Deck (6)
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1

"Symbolic speech” or “expressive conduct” is

when people use conduct to communicate a message

2

What test is used to determine what is symbolic speech?

Spense Test

If test is met, the conduct is symbolic speech

3

Elements of Spense test

a) Is there intent to convey a message?
b) Is it likely that the message will be understood by people who view it?
c) *If yes to both, the speech is symbolic speech

i. *Then apply the O’Brien test

4

When do conduct regulations incidentally impact speech?

They impact speech when the conduct is trying to be used for speech purposes

5

O'Brien test (Gov’t regulation is sufficiently justified when:)

(1) The regulation furthers a substantial gov’t interest (*intermediate scrutiny*)

(2) The gov’t interest is unrelated to suppression of speech
a. This means that if the gov’t is regulating the conduct because of the message, then it’s content-based and gets strict scrutiny

(3) The regulation is a reasonable fit to achieving the gov’t interest

6

Flag desecration

Texas v. Johnson
Defendant burned a flag as a means of political protect → this is symbolic speech; satisfies the Spense test

Defendant was convicted under a statute that made flag burning, with knowledge that someone likely to observe the action will be seriously offended, a crime

HOLDING --> flag burning is constitutional
(1) Under the O’Brien test, the law is related to the suppression of the expression of speech because only guilty if you burn flag in a way that offends ppl
(2) Gov’t may not prohibit the expression of an idea simply because society find the idea itself offensive