![]() ![]() 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.
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