Symbolic Speech

Front 1

US v O'Brien

Back 1

Case decided incorrectly, but test correct. When conduct contains both "speech" and "non-speech" elements, an important governmental interest in regulating the nonspeech element may justify incidental limitations on first Amend freedoms.

Front 2

O'Brien Test

Back 2

1. Is it with the constitutional limits of the government? Power base-here to raise armies and do what's nec and proper
2. Does it further an important or substantial governmental interest? to raise army efficiently we need people with draft card ready
3. Is the governmental interest unrelated to the suppression of free speech?
4. Is the incidental restriction on alleged First Amendment freedoms no greater than is essential to the furtherance of that interest? this is the "least restrictive means" test

Front 3

If _______ use you the _______ balancing.

Back 3

If unrelated you use the serious balancing. If related then you look more closely (Johnson).

Front 4

Tinker v Des Moines Independent Comm School Dist

Back 4

1969
Students wore black arm bands to school to protest the governments policy in vietnam. Ct said wearing armband for purpose of expressing certain views is the type of symbolic act that is within 1st Amend and is closely akin to pure speech

Front 5

Undifferentiated Fear

Back 5

Something bad is going to happen, so I have to do this (but we don't know what bad is going to happen and IF it's going to happen, so this is NOT a basis to suppress speech)

Front 6

Texas v Johnson

Back 6

Johnson burned flag at political demonstration. Crime in TX for any person to "deface, damage, or otherwise physically mistreat" the flag "in a way that the actor knows will seriously offend 1 or more persons likely to observe or discover his action. The law looks content neutral. Ct uses O'Brien approach -is it related to speech or not related? they thought it was related - exacting scrutiny (here using Cohen analysis). Ct said not incitement or fighting words, they went to strict scrutiny.