Constitutional Law II

Expressive Conduct

The government can regulate expressive conduct for its non-communicative impact. According to O'Brien, to do this, the regulation must:

  1. Be within the government's enumerated powers
  2. Further a substantial government interest
  3. Not be a pretext for regulating conduct
  4. Be a less restrictive means

The expressive conduct doctrine only applies to non-serious criminal conduct.

This conflicts with the free exercise doctrine.