1. Does the act have an element of speech? If no, then the act
is not speech and not protected under the First Am. If yes, go to #2.
2. Do various doctrines apply to the symbolic speech (i.e., burning a
flag or a draft card) that would prevent it from being protected by
the First Amendment?
a. Chaplinsky: Obscenity, “fighting words” (but do not forget
“captive audience/averting eyes” exception found in Cohen), etc.
b. Brandenburg two-part test
If the symbolic speech meets the requirements of any of these
doctrines, it is not protected by the First Am. If it does not, go to #3.
3. Does the symbolic speech occur in an educational context? If
so, Tinker would apply (but also briefly apply O’Brien in #4, since this test was developed after Tinker and has been applied to symbolic speech).
4. Does the statute prohibiting the speech meet the O’Brien test? If
the third element is lacking—that is, if the regulation is content-based instead of content-neutral—then go to #5 and apply “strict scrutiny” to the statute (like the Tinker and Johnson Courts did). If the third element is not lacking, and no other elements are lacking, then the statute is upheld under O’Brien and the speech can be prohibited.
5. Does the statute withstand “strict scrutiny”? Most likely not,
in which case the speech cannot be constitutionally prohibited. If
so, then the speech can be prohibited.
Johnson is a great model for seeing how the Ct applied the above
approach to a statute whose purposes were to prevent symbolic speech
and protect a national symbol.
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