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Flashcards in Symbolic Speech Deck (6)
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"Symbolic speech” or “expressive conduct” is

when people use conduct to communicate a message


What test is used to determine what is symbolic speech?

Spense Test

If test is met, the conduct is symbolic speech


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


When do conduct regulations incidentally impact speech?

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


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


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