Restricting Symbolic Expression: The O

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Restricting Symbolic Expression The OBrien Test

• Govt. regulation of symbolic speech is justified
  if
• it is within the constitutional power of govt.
• if it furthers an important or substantial govt.
  interest
• if the govt. interest is unrelated to the
  suppression of the free expression
• if the incidental restriction on the alleged
  First Amendment freedom is no greater than
  essential to the furtherance of that interest

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Time, Place, and Manner Restrictions (TPM)

• Recognizing the multi-dimensionality of messages
  (content and context)
• Early position--Davis v. Mass. (1897)
• public spaces held in trust
• Hague v. CIO (1939)--the door opens, no
  arbitrary suppression of free expression, govt.
  does not have unlimited power to regulate
  expression in public fora

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Schneider v. State, (1939) 3 others

• 3 important elements
• cities can regulate door-to-door speech, but must
  be reasonable
• littering is an insufficient justification for
  limiting speech
• look to alternatives (less restrictive means)
• Cantwell v. Connecticut (1940)--preventing
  fraudulent solicitation for a religion does not
  justify a licensing system

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Contemporary TPM Tests

• the restrictions are justified without reference
  to the content of the regulated speech--the
  content neutrality test
• the restrictions are narrowly tailored to serve a
  significant government interest--the least
  restrictive means test, does it further the govt.
  interest, is the interest significant or
  substantial?
• the restrictions leave open ample alternative
  channels for communication of the
  information--how much (and a what price) is
  acceptable, what if the medium is the message?

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TPM Restrictions in Use

• Whats not protected?
• Courthouses/jailhouses
• blocking entrances to govt. buildings
• schools in session
• military bases
• mass transit advertising
• residential picketing

• Whats protected?
• demonstrations where the assembly meets
• marching in the streets
• airports