What is the test for expressive conduct under the First Amendment?

MultiRegion, United States of America

The following excerpt is from Steel MMA, LLC v. Newsom, Case No.: 21-CV-49-CAB-AGS (S.D. Cal. 2021):

"Expressive conduct is characterized by two requirements: (1) 'an intent to convey a particularized message' and (2) a 'great' 'likelihood ... that the message would be understood by those who viewed it.'" Edge v. City of Everett, 929 F.3d 657, 668 (9th Cir. 2019) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)). "Because the [Supreme] Court has eschewed a rule that all conduct is presumptively expressive, individuals claiming the protection of the First Amendment must carry the burden of demonstrating that their nonverbal conduct meets the applicable standard." Id.

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