What Does the Statute Target?

Written or Spoken Word

OR:

NO: then,
Rational Basis

IS IT SPEECH???

Expressive Conduct
(Symbolic Speech)
1. Actor intends to communicate a
message
2. Reasonable audience substantially
likely to receive message.

FACIAL
ATTACK

CONTENT
NEUTRAL

CONTENT
BASED

Categorical
disqualification:
1. C+PD
(Brandenburg)
2. Fighting Words
3. Obscenity
(Miller)
4. Child Porn
(Ferber)
5. Direct Threat
1. Defamation
2. Commercial

UNprotected:
Rational
Basis
(Challenger
Burden)
1. Legitimate Govt Obj.
2. Reasonable Means

FACIAL ATTACK:
Vague/ Overbroad

Protected
(NOT part of
an
unprotected
category)

SYMBOLIC SPEECH
OBrien
(Govt Burden)
1. Within Constitutional PWR
2. Furthers Substantial interest
3. Unrelated to the
suppression of speech
4. Effect on speech no more
than incidental?

INTERMEDIATE
FACIAL ATTACK:
1. Vaguereasonable person cannot tell

what the law prohibits and what it permits

2. Overbroad1) Must be substantially
overbroad; 2) may be argued by someone
to whom the law applies constitutionally

Strict Scrutiny
(Govt Burden)

1. Compelling Interest
(Forum)
2. Necessary Means
(No other way?)

(Govt Burden)

1. Important State Interest

2. Substantially related means
3. No more burdensome than
necessary (reasonable alts.)

Secondary Effects Exception

(Sexual speech)
Injunctive Restraints: May be
Content Based

Forum:
1. Public: Streets and Parks (NOT private
Shopping Cntr.)
2. Non- Public: Prisons, schools [viewpoint
v. content discrimination]
3. Limited: Govt owned, opened for speech
(if opened must follow TPM rules)
TPM Restrictions (Public/Limited):
1. Content-neutral (contextual)
2. Important Govt interest/ directly related
means
3. Adequate alternatives for expression