Be sure to distinguish between symbolic speech (a black armband, a pride flag t-shirt), and symbolic conduct (burning a flag or a draft card). The former is pure speech; the latter is the subject of the watered down, O'Brien Test.
Once we are dealing with symbolic acts, O’Brien gives us a four-part test for determining when a government interest in regulating the nonspeech element sufficiently justifies the regulation of expressive conduct:
The government regulation of expressive conduct is valid if:
1) it is within the Constitutional power of government [raising an army]
2) furthers an important or substantial interest [preventing harm to the smooth and efficient functioning of the Selective Service System]
3) if the governmental interest is unrelated to the suppression of free expression; and
4) if the incidental restriction on free expression is no greater than is essential to the furtherance of that interest.
By the way, notice how the Court totally rejects a "purpose" test under the Free Speech Clause. The Court's objections here (p.1586) are basically the same as Justice Scalia's objections to a "purpose" test under the Establishment Clause. Notice that, somehow, the EC seems to be an exception to every normal rule the Court applies to every other constitutional claim--standing, incorporation, purpose, government speech, etc. Where in the text of the Constitution is this special status for the EC?
No comments:
Post a Comment