Con Law Question

[johnlusf]

I'm sure jumboshrimps will probably weigh in on this question. All the better!

(1) I wanted to know how conduct is considered communicative and how sufficiently communicative must it be to be covered by the First Amendment. (Let's say a statute prohibits face-painting in public except for football games and a group of mentally retarded people who face-painted themselves in public are challenging this statute. Crazy hypo, I know, but bear with me)

(2) Assuming the conduct is deemed either non-communicative or communicative, how are time, place, or manner restrictions evaluated to determine the restriction/regulation/statute's constitutionality? (Say the group challenges the statute's facial validity by pointing to the statutes' exception for football games)

(3) This one seems to be the tricky part to me:
Assume a court has found this form of conduct (putting on face paint in public) by mentally disabled persons to be insufficiently communicative to come under the First Amendment. Say the statute in question banned all face paint in public except for football games/mardi gras/some other holiday. Can this finding (noncommunicative) be the basis of arguing that a time, place, or manner statute banning the conduct of putting on face paint is not unconstitutional even though people at football games can put on face paint?

(3)(a) What if another group, say, natives of Eporue, challenged the statute, and they argued that face-painting is their only form of identification? Will this challenge stand if the court has already found in (3) that the statute is not facially unconstitutional?

A big thanks to everyone who took the time to read through all this unintelligible crap!

[babyeatsdingo]

I am a 0L. I know nothing.

Are you trying to determine under what conditions face-painting would be/should be considered protected speech?

[Jumboshrimps]

Oh no. It appears I'm developing a reputation of some kind. . .

The case that comes to mind is Tinker v. Des Moines, 393 U.S. 503. The wearing of anti-war armbands by public school students was considered akin to "pure speach." That case discusses the "context" issues you brought up, such as time, place, etc.

My understanding is that, if an action is labeled "conduct," it is afforded no First Amendment protection at all (aside form assembly or religious conduct). So, no statute could be facially unconstitutional solely for banning a certain type of conduct, unless it infringed on a liberty interest or implicated equal protection issues. So, the answer to 3(a) is that a challenge to a statute that banned face painting except among certain groups is that it could be struck down on equal protection grounds if the painting was considered conduct and not speech. But, if the painting is considered speech (as it is likely to be), there are at least two ways to challenge the statute-- equal protection and First Amendment grounds.

I'm not sure I understand what you're getting at in number 3. If face painting is determined to be conduct, and not speech, then you are left with equal protection arguments, and those are almost always losers unless race or ethnicity are implicated.

But, personally, I think such a statute would be a violation of a non-football-game-attending person's right to liberty. I would lose that one every time too.