symbolic speech

Tinker

School adopted a policy when it became aware of an

upcoming protest of Vietnam war that refusing to

remove an armband could result in suspension.

Students wore black armbands to school to publicize

their objection of hostilities in Vietnam.

Protected speech b/c akin to “pure speech” which is

entitled to comprehensive First Amend protection. To

prohibit an expression the school must show it is

necessary to avoid material and substantial

interference w/ schoolwork or discipline. The

school did not prohibit wearing other political

symbols (e.g., buttons). Students and teachers do not

shed their constitutional rights of freedom of speech at

the school’s door. School activites were not

interrupted and other’s rights were not intruded upon.

United States v. O’Brien (1968)

Fed. 1965 Amend made it a crime to willfully and

knowingly destroy the selective service registration

card.

Petitioner argued (1) symbolic speech includes all

modes of communication of ideas [no b/c limitless

variety of conduct could be labeled “speech”

whenever the person intended to express an idea]and

(2) Congress’ purpose for enacting the amend was to

suppress freedom of speech [court not strike down

constitutional statute b/c basis of alleged illicit

legislative motive b/c all they have to do is pass it

again w/ a legitimate motive].

Court of Appeals held it unconstitutional b/c it

abridges freedom of speech when there was already

legislation that made punishable to not possess the

card.

Unprotected speech b/c when speech is combined w/

conduct and the gov’t has a sufficiently important

interest in regulating the nonspeech element that

justifies incidental limits upon 1st Amend.

Congress has power to raise and support army which

includes all laws necessary and proper to that end.

The cards serve as proof of registration, in time of

nat’l crisis it provides a rapid and uncomplicated

mean, facilitates communication btn registrants and

local board b/c has registrants’ selective service

number to readily communicate it w/ the local board

to locate his files, continual reminders to notify his

board of changes in status/address.

TX v. Johnson

Ordinance stating that flag burning is not allowed

Protected speech b/c the statute aims at prohibiting

conduct that offends other (i.e., content-based),

burning the flag is expressive conduct.

Barnes v. Glenn Theatre

Statute prohibited nudity. Why is this symbolic

conduct? It is an erotic message. This type of

message is outside the parameters of 1st Amend. The

issue is whether the state’s regulation was unrelated to suppression of speech. Argue there is a message b/c

the dancer’s skills transmit a message.

Unprotected speech b/c serves a purpose of protecting

morality. Morality is content-neutral so the gov’t

may make regulations because morality exists on its

own as a neutral factor.

Schat

Statute that prohibited wearing a military uniform w/o

authority not upheld b/c viewpoint discrimination

making it a crime for actor wearing a military uniform

to say anything critical of Armed Forces.

City of Erie v. Pap’s A.M. (2000)

Nude dancing is not protected speech b/c gov’t

justification in regulating the prevention of harmful

“secondary” effects (nude dancing attracts unlawful

activities) that are unrelated to the suppression of

expression.

United States v. Eichman (1990)

Flag Protection Act unconstitutional b/c applying

strict scrutiny the Act suppresses expression out of

concern for its likely communicative impact and could

not be justified w/o reference to the content of the

regulated speech.