Sample Outline Section - First Amendment Rights - Symbolic Speech Issue:

1. Symbolic speech (or expressive conduct)  - communication of a message or idea by conduct or something other than words.

A. Test to determine if something is symbolic speech - Spence test - (1) be intended to communicate a message (the message can be general or specific): and (2) be likely, in the circumstances, to be understood by its intended audience.

Examples from assigned cases: draft card burning (United States v. O’Brien (1969)), peace symbol attached to American flag (Spence v. Washington (1974)), flag burning (Texas v. Johnson (1989)), social dancing (City of Dallas v. Stanglin (1989)), nude dancing (Barnes v. Glen Theatre, Inc. (1991)), and a parade (Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston (1995)).

B. If something is symbolic speech as determined under the Spence test, it is analyzed under the United States v. O’Brien test, a form of intermediate scrutiny, which asks whether: (1) the regulation furthers an important or substantial government purpose, (2) the purpose is unrelated to the suppression of expression and (3) the restriction is narrowly tailored to accomplish the substantial purpose. If all 3 parts of the test are satisfied, the restriction on the symbolic speech does not violate the first amendment.

However, the O'Brien test uses a two-track approach. If the government purpose is related to suppression of expression and the government therefore fails the second prong of the test, the government must instead satisfy the strict scrutiny test. That test requires the government to prove that it has a compelling governmental objective and it is employing means that are narrowly tailored (no less restrictive alternatives are available) to the accomplishment of its compelling interest. Example: Texas v. Johnson, the flag burning case - the government's purpose was to suppress flag burning when used to convey anti-government messages. That purpose failed the second part of the Spence test since it was related to the suppression of expression. Under the strict scrutiny test that was then applied, the Supreme Court decided the government could not satisfy the test.