Burning a flag. Wearing a black armband. Marching in silence. These are all forms of speech — but they don’t use a single word. If you’re confused about how the First Amendment applies to actions rather than words, you’re not alone. And the MBE tests this distinction constantly.

Regulation of expressive conduct is one of those Constitutional Law topics that trips up bar takers because it sits at an uncomfortable intersection: it’s not pure speech, but it’s not purely non-expressive either. The rules aren’t complicated once you understand the framework, but you have to know exactly which test applies and when. Let’s break it down.

What Is Expressive Conduct?

Before you can apply any test, you need to recognize what qualifies as expressive conduct in the first place. Expressive conduct — sometimes called symbolic speech — refers to conduct that is intended to convey a message and is reasonably understood by observers as doing so.

The classic examples: burning a draft card, burning an American flag, wearing a protest armband, marching in a demonstration. These are physical acts, not spoken words. But they communicate something. That communicative quality is what triggers First Amendment protection.

Here’s the threshold question courts ask: Was the conduct intended to convey a particularized message, and would people who observed it understand that message? If yes, the conduct is expressive and gets First Amendment scrutiny. If no, it’s just conduct, and the government can regulate it under ordinary rational basis review without any First Amendment analysis at all.

That threshold matters enormously on the MBE. Don’t skip it.

The O’Brien Test: The Core Framework You Must Know

Once conduct qualifies as expressive, the next question is what kind of regulation is at issue. If the government is regulating the non-expressive aspects of the conduct — not targeting the message itself — courts apply the O’Brien test, drawn from United States v. O’Brien (1968).

Under O’Brien, a government regulation of expressive conduct is valid if:

  1. The regulation is within the constitutional power of the government
  2. It furthers an important or substantial governmental interest
  3. The governmental interest is unrelated to the suppression of free expression
  4. The incidental restriction on First Amendment freedoms is no greater than is essential to further that interest

That third element is the most important one for MBE purposes. Read it carefully. If the government’s interest is related to suppressing the message — if the whole point of the regulation is to shut down what the conduct communicates — O’Brien doesn’t save it. The regulation fails.

Think of it this way: O’Brien is for regulations that would apply equally regardless of what the conduct was saying. The government isn’t targeting the message. It’s targeting something else — safety, traffic flow, property damage — and the expressive conduct just happens to be caught up in that.

When the Government Is Targeting the Message

When the government’s interest is directly tied to suppressing the content or viewpoint of the expressive conduct, you’re no longer in O’Brien territory. Now you’re in strict scrutiny territory.

This is where Texas v. Johnson (1989) comes in — the flag burning case. Texas had a law prohibiting flag desecration. The state’s interest wasn’t content-neutral. The whole point was to protect the flag as a symbol and prevent the message of disrespect. The Court struck it down. The law was aimed squarely at the communicative impact of the conduct.

So the analytical path looks like this:

Get that sequence into your head before exam day.

Content-Neutral vs. Content-Based: Why It Matters Here

The distinction between content-neutral and content-based regulations maps directly onto the expressive conduct analysis.

A content-neutral regulation doesn’t care what you’re saying. It applies to all conduct of a certain type regardless of message. A noise ordinance that applies to all amplified sound after 10 p.m. is content-neutral. It doesn’t matter if you’re playing music, giving a speech, or broadcasting silence.

A content-based regulation targets conduct because of the message it conveys. A law that prohibits burning the flag specifically — but not burning other objects — is content-based. It singles out the flag because of its symbolic meaning.

Content-neutral regulations of expressive conduct → O’Brien test (intermediate scrutiny, essentially). Content-based regulations of expressive conduct → strict scrutiny (compelling interest, narrowly tailored).

The MBE will try to blur this line. Watch for regulations that look content-neutral but are actually triggered by the communicative nature of the conduct.

A Hypothetical to Test Your Thinking

Here’s the kind of fact pattern you might see:

A city ordinance prohibits burning any object in a public park. A protestor is arrested after burning a replica of a government building to protest urban development policy. She challenges the ordinance under the First Amendment.

Work through it. Is the burning expressive? Almost certainly yes — she intended to convey a protest message and observers would understand it. Is the ordinance content-neutral? Probably yes — it prohibits burning any object, not just symbolic ones. The city’s interest is presumably fire safety and park preservation, not suppression of anti-development messages.

Apply O’Brien: Is the regulation within government power? Yes. Does it further an important interest? Fire safety qualifies. Is the interest unrelated to suppressing expression? Yes — the ordinance doesn’t care what she was saying. Is the restriction no greater than necessary? Probably yes, since a blanket ban on open burning is a reasonable fit.

Result: The ordinance likely survives. Now change one fact — the ordinance prohibits burning flags and political symbols specifically. Now the government’s interest is tied to the communicative content. Strict scrutiny applies. Much harder to survive.

That’s how the MBE tests this. Small fact changes, big doctrinal consequences.

Time, Place, and Manner Restrictions

Don’t forget that time, place, and manner restrictions also apply to expressive conduct. These are content-neutral regulations that restrict when, where, or how expression occurs — not what is expressed.

To be valid, a time, place, and manner restriction must:

  1. Be content-neutral
  2. Be narrowly tailored to serve a significant governmental interest
  3. Leave open alternative channels of communication

This overlaps with O’Brien in some respects, but the alternative-channels requirement is specific to the time, place, and manner doctrine. If a city bans all protest marches downtown but allows them in a park three miles away, that alternative channel matters. If the restriction effectively eliminates all meaningful opportunity to communicate the message, it fails.

What the MBE Actually Tests

On regulation of expressive conduct MBE questions, the examiners are testing whether you can:

The most common mistake is applying strict scrutiny to everything involving expression. O’Brien is the right framework for most expressive conduct regulations on the MBE — but only when the government’s interest is genuinely unrelated to suppressing the message. That third O’Brien element is your key diagnostic.

FlashTables is a set of professionally formatted two-column PDF rule tables covering all seven MBE subjects — 704 rules total, organized by the official NCBE Subject Matter Outline. The O’Brien test, the expressive conduct threshold, and the content-neutral/content-based distinction are all laid out side-by-side in the Constitutional Law table, making it easy to drill these elements in sequence. Whether you’re a law student locking in black-letter law for finals or a bar taker running active recall drills in the final weeks before the MBE, the tables give you the rules in the exact format your brain needs to retrieve them under pressure. You can see what’s covered at getflashtables.com.

Key Takeaways: What to Memorize