Is a Government Action Impacting/Restricting Individual Behavior?
Yes
Is the Individual's Behavior Expression or Conduct w/ Impact on
Expression?
Conduct w/
Impact on
Expression
Spence Test:
(1) Does the Individual "intend to covey a particularized message" through the
conduct?
(2) Are viewers of the conduct likely to understand the particularized message?
Expression
No
Expression
Apply Strict Scrutiny
(See Texas v.
Johnson)
If yes to both (apply
less scrutiny):
O'Brien Analysis:
(1) Is the regulation within the power
of the government?
(2) Does it further an important
governmental interest unrelated to the
suppression of free expression?
(3) Is the restriction on expression no
greater than is needed to further the
government's interest?
(1) Is there a compelling
state interest?
(2) Is the government's
action narrowly tailored to
that interest?
No 1st Amendment
Analysis (Virginia v.
Black)