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SYMBOLIC EXPRESSION

SYMBOLIC EXPRESSION. JOUR3060: Communication Law & Regulation. The First Amendment protects SPEECH conduct (not regular conduct or actions) So… when is something speech conduct? When it is expressive conduct. TEST FOR EXPRESSIVE CONDUCT.

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SYMBOLIC EXPRESSION

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  1. SYMBOLIC EXPRESSION JOUR3060: Communication Law & Regulation

  2. The First Amendment protects SPEECH conduct • (not regular conduct or actions) • So… when is something speech conduct? • When it is expressive conduct

  3. TEST FOR EXPRESSIVE CONDUCT • Is there intent to express, convey or disseminate a message? • If yes, then… Is there a likelihood that the message will be understood? • If yes, then… First Amendment Protection • Is the governmental regulation aimed directly at the suppression of free expression, or is it aimed at regulating something else? • If yes, then… • Is it necessary to achieve a compelling government purpose? • No = unconstitutional • If no, then… • Is it substantially related to an important government purpose, and narrowly tailored? • No = unconstitutional

  4. SYMBOLIC EXPRESSION • Remember Chaplinski vs. New Hampshire (1942): “fighting words” not protected • US v. O’Brien (1968) • O’Brien Test: • 1. Does the law further an important or substantial government interest? • 2. Is the government interest unrelated to suppression of free expression? (content neutral) • 3. Is the restriction narrowly tailored?

  5. LEVELS OF SCRUTINY 1. Strict Scrutiny: upheld if necessary to achieve a compelling government purpose, least restrictive; government has burden of proof - prior restraint, content based 2. Intermediate Scrutiny: upheld if it is substantially related to an important government purpose, narrowly tailored; government has burden of proof - content neutral 3. Rational Basis: upheld if it is rationally related to a legitimate government purpose; challenger has burden of proof - other discriminations - this is the only test in which courts defer to government

  6. LEVELS OF SCRUTINY: EXAMPLES • Cohen vs. California (1971)strict scrutiny • Texas vs. Johnson (1989)strict scrutiny • Barnes vs. Glen Theatre (1991)substantial govt interest • Pap’s A.M. vs. Erie (2000) intermediate scrutiny • Virginia vs. Black (2003) content-based laws are unconstitutional • Holder vs. Humanitarian Law Project (2010)

  7. LEVELS OF SCRUTINY: MEDIA • Broadcasting: • FCC v. League of Women Voters of CA (1984) • Cable Television: • Turner Broadcasting v. FCC (1997) • Video Games: • Brown vs. Entertainment Merchants Ass’n (2011)

  8. FOR NEXT CLASS: • Topic: Rights of Minors • Reading Assignment: Hopkins Chapter 7 • Topic: Prepare for Exam #1 • Assignment: Be prepared with any questions!

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