SYMBOLIC EXPRESSION
JOUR3060: Communication Law & Regulation
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The First Amendment protects SPEECH conduct
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(not regular conduct or actions)
So… when is something speech conduct?
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When it is expressive conduct
TEST FOR EXPRESSIVE CONDUCT
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Is there intent to express, convey or disseminate a message?
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If yes, then… Is there a likelihood that the message will be
understood?
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If yes, then… First Amendment Protection
Is the governmental regulation aimed directly at the
suppression of free expression, or is it aimed at regulating
something else?
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If yes, then…
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Is it necessary to achieve a compelling government purpose?
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No = unconstitutional
If no, then…
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Is it substantially related to an important government purpose, and
narrowly tailored?
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No = unconstitutional
SYMBOLIC EXPRESSION
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Remember Chaplinski vs. New Hampshire (1942): “fighting
words” not protected
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US v. O’Brien (1968)
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O’Brien Test:
1. Does the law further an important or substantial
government interest?
2. Is the government interest unrelated to suppression of free
expression? (content neutral)
3. Is the restriction narrowly tailored?
LEVELS OF SCRUTINY
1. Strict Scrutiny: upheld if necessary to achieve a compelling
government purpose, least restrictive; government has burden of
proof
- prior restraint, content based
2. Intermediate Scrutiny: upheld if it is substantially related to an
important government purpose, narrowly tailored; government has
burden of proof
- content neutral
3. Rational Basis: upheld if it is rationally related to a legitimate
government purpose; challenger has burden of proof
- other discriminations
- this is the only test in which courts defer to government
LEVELS OF SCRUTINY: EXAMPLES
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Cohen vs. California (1971) strict scrutiny
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Texas vs. Johnson (1989) strict scrutiny
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Barnes vs. Glen Theatre (1991) substantial govt interest
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Pap’s A.M. vs. Erie (2000) intermediate scrutiny
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Virginia vs. Black (2003) content-based laws are
unconstitutional
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Holder vs. Humanitarian Law Project (2010): restriction of
political speech
LEVELS OF SCRUTINY: MEDIA
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Broadcasting:
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Cable Television:
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FCC v. League of Women Voters of CA (1984)
Turner Broadcasting v. FCC (1997)
Video Games:
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Brown vs. Entertainment Merchants Ass’n (2011)