25 Nov O`brien Test Legal
Partly because of growing domestic political opposition, the United States reduced its involvement in Vietnam and completed the withdrawal of its forces in 1973. The design ended the same year. On January 21, 1977, the day after his inauguration, President Jimmy Carter signed Executive Order 11967, which granted full pardon to anyone who committed or was convicted of a nonviolent violation of the Selective Service Act.  This included everyone from conscientious objectors to protesters like O`Brien. The pardon covered all acts committed between August 4, 1964, the date of the incident in the Gulf of Tonkin, and March 28, 1973, the date of the end of the American withdrawal. The burning or destruction of design boards was often done to protest against war. Meet David Benson, 18, of Morgantown, W. Virginia, parts of his conscription card, which he destroyed during a demonstration outside the Boston military base on March 25, 1966, to protest U.S. involvement in Vietnam.
Benson initially tried to burn the design board, but failed. Then he tore it to pieces. He said he would send it to his drafting committee. Benson was arrested by Boston police along with eight other members of the group for “inciting riot and creating a breach of the peace.” (AP Photo/J. Walter Green, courtesy of The Associated Press.) Warren noted that a bill can be constitutional even if the reason for its passage was inappropriate, such as suppressing protests, and showed respect for lawmakers in the field of military service. He noted that the law covered conduct rather than speech, which meant that the Court had to consider it more leniently. Expressive behavior that has symbolic significance may still be protected by the First Amendment, but the standard of review requires only a substantial state interest that is neutral in content, not independently unconstitutional, and that violates no more speech than is necessary to pursue government interests. Technically, this section of the report may not have had precedent, as Warren wasn`t sure O`Brien`s actions were even labeled as expressive behavior. However, this has become the standard used to evaluate First Amendment challenges on such a basis. Warren was not convinced that the design cards were arbitrary, useless papers that served no purpose. He felt that they had helped the design process run more smoothly and that Congress should have a great deal of discretion in the steps it took to facilitate the formation of an army.
O`Brien was free to verbally criticize the use of design boards, but burning them outright thwarted the government`s interest in keeping design boards available. The government had no viable alternative to ensure their continued use if they were destroyed. In 1965, Congress passed the Selective Service Act to prohibit the deliberate mutilation of design cards. During the debate, some members of Congress expressed their view that the purpose of the law was to silence an opportunity for protesters against the Vietnam War. In March 1966, David Paul O`Brien and three other men burned their conscription cards outside a courthouse in South Boston to express their anti-war beliefs. O`Brien argued that even if the law was considered prima facie valid, the way it was applied to him was unconstitutional because the law punished him for his anti-war statement. Justice John Marshall Harlan II wrote a brief agreement, noting that the “core” of the decision was the four-part test. He added that even if a bill met an O`Brien test, a law could still violate the First Amendment if it “prevents a speaker from reaching a significant audience with whom they would otherwise not be able to communicate legally.” Two years later, in Spence v.
Washington that the O`Brien test is “not applicable” if the government`s alleged interest is “directly related to the reporting in the context of the activity.”  Spence decided that a man flying an American flag with a peace symbol stuck to it was engaged in protected expression; In 1989, the court also upheld the right to burn the American flag as expressive behavior in Texas v. Johnson.  In 1980, however, Congress reinstated the requirement for young men to enroll in the selective service system, but did not reintroduce active conscription. In 1984, the Supreme Court upheld the registration requirement against an allegation that it had violated the privilege of self-incrimination.  The following year, it upheld the conviction of a man who had refused to register, arguing that the refusal constituted a political protest.  As of 2022, male citizens (and many male non-citizens) between the ages of 18 and 25 will still be required to register for reinstatement of conscription.