![]() ![]() The O’Brien test, used to determine when the regulation of symbolic speech violates the First Amendment, has not been considered appropriate in every symbolic speech case, specifically in cases dealing with flag burning, noting in Spence v. Critical here was the fact that students were peaceful and nondisruptive in their use of armbands as symbolic speech wearing the armbands was no more disruptive than other symbols and jewelry that students were permitted to display. The Court held that the ban was a suppression of student expression and therefore a First Amendment violation. ![]() The Court rejected the school’s argument that it needed the regulation to maintain order. Des Moines Independent Community School District (1969), a case in which a school district attempted to prohibit students from wearing black arm bands to protest the war. Symbolic speech was upheld in TinkerĪlso decided during the Vietnam War was Tinker v. The Court ruled that the draft card regulation passed all parts of the test and thus was constitutional. Is this regulation the least restrictive means with regard to free speech?.Is the interest unrelated to the suppression of free expression?.Does the law further a substantial or important government interest?.Is the law within the constitutional power of the government?.The Court created a four-part test to determine when regulation of symbolic speech violates the First Amendment: Congress defended the law on the basis that it had a legitimate reason for protecting draft cards: they indicated draft status and other information and facilitated government-citizen communication about this status, both critical factors in a time of mobilization for war. O’Brien involved a Vietnam War–era law that prohibited the destruction of draft cards. O’Brien (1968) demonstrates this point well the standard set in this case continues to be applied. The Supreme Court’s ruling in United States v. Sometimes symbolic speech is more regulated than traditional speech formsĪt times, symbolic speech is more regulated than traditional forms of speech because it involves conduct or action, not simply words. It is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order. Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing arm bands, and burning of draft cards. In this 2017 photo, Mary Beth Tinker holds the original detention slip she received for wearing the black armband. The Court held that the ban was a suppression of student symbolic expression and therefore a First Amendment violation. Des Moines Independent Community School District (1969) was a case in which a school district attempted to prohibit students from wearing black armbands to protest the war. Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, wearing armbands, and burning of draft cards. ![]()
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