2. 3 Kinds of Conduct
• No communicative value
• Purely Communicative
• Both communicative and non-
communicative

3. Court Tests
1) Is the conduct expressive?
(Intent and likelihood)

4. Court Tests
1) Is the conduct expressive?
(Intent and likelihood)
• If no, government may regulate
• If yes, we ask the next question . . .

5. Court Tests
1) Is the conduct expressive?
(Intent and likelihood)
• If no, government may regulate
• If yes, we ask the next question . . .
2) Is the expressive conduct protected?

6. Is the Expressive Conduct
Protected?
• United States v. O’Brien (1968)
• Texas v. Johnson (1989)

7. Is the Expressive Conduct
Protected?
• To determine answer, we look at government’s
intent
– If the regulation is aimed at the expressive content
itself, we apply strict scrutiny
– If the regulation is not aimed at the expressive
conduct, we apply intermediate scrutiny (“The
O’Brien Test”)

8. The O’Brien Test
• Is the regulation within Constitutional
power of the government?
• Does the regulation further an important or
substantial government interest?
• Is the government interest unrelated to the
suppression of free expression?
• Is the incidental restriction of expression
no greater than essential?

9. Flag Burning

10. Nude Dancing

11. Hate Speech
• Chaplinsky v. New
Hampshire (1942)
• RAV v. St. Paul
(1992)

12. “Intimidating Speech”
• Virginia v. Black
(2003)

13. Picketing

14. Picketing
“Simply put, the church members had the right to be where they were.”
--Chief Justice John Roberts