United States v. O'Brien

O'Brien saw the advent of a new test for determining the constitutionality of government regulation of "symbolic" speech.

On 31 March 1966, David O'Brien and three companions burned their selective service registration cards on the steps of the South Boston Courthouse. The purpose of their symbolic gesture was to protest the war in Vietnam, and a sizeable crowd-including several agents of the Federal Bureau of Investigation (FBI)-witnessed the act. Immediately afterward, some members of the crowd began attacking the draft card burners, and an FBI agent ushered O'Brien inside the courthouse to safety. The agent then advised O'Brien of his right to legal counsel and to silence, whereupon O'Brien announced that he had burned his draft card to demonstrate his beliefs and that he did so with the full knowledge that he was violating federal law. He gave his permission for the charred remains of his draft card to be photographed.

A federal statute made it a criminal offense to knowingly destroy or mutilate a Selective Service registration certificate. This law was used in the U.S. District Court for the District of Massachusetts to try and convict O'Brien. O'Brien did not contest the government's presentation of facts; indeed, he told the jury that he had burned his draft card with the specific intention of encouraging others to adopt his antiwar beliefs. Instead, O'Brien argued that the federal statute outlawing the destruction of draft cards was a violation of First Amendment free speech rights. Although the district court dismissed these arguments, the Court of Appeals for the First Circuit found that the federal law was unconstitutional. The government then petitioned the U.S. Supreme Court for review of this decision.

The Court voted 7-1 to uphold the federal law. Writing for the majority, Chief Justice Warren set out a new test for determining when government regulation of symbolic speech is permissible:

We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea . . . we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The Court found that the law met all of the above requirements. First, its purpose was to uphold the government's broad power to raise and support an army. Second, draft cards furthered the important government interest of knowing who was in the army and aiding communications with those persons. The law had no bearing on the repression of free speech. And lastly, the Court found that the reach of the law was no broader than was necessary to implement the Selective Service Act. O'Brien's act had violated the law and deliberately hindered the government's legitimate, constitutionally granted military mandate. O'Brien's conviction stood.

The O'Brien test, in which a regulation must only incidentally impinge on the content of speech and be narrowly tailored to achieve a legitimate government interest, has since been employed in cases concerning so-called "time, place, and manner" restrictions. Such restrictions are intended to control the potentially harmful side effects of speech, while remaining neutral as to the content of the speech. They can apply not only to pure speech, but to speech acts such as O'Brien's highly public draft card burning ceremony.

Related Cases

• McCray v. United States, 195 U.S. 27 (1904).
• Selected Draft Law Cases, 245 U.S. 366 (1918).
• Stromberg v. California, 283 U.S. 359 (1931).
• Grosjean v. American Press Co., 297 U.S. 233 (1936).
• Ex parte Quirin, 317 U.S. 1 (1942).
• Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Draft Card Burning

As the 1960s progressed the war in Vietnam substantially escalated. Many Americans, believing the war immoral, criticized the Selective Service System which drafted young men into military service. Chanting "We Won't Go," more than 1,000 students gathered in New York City in May of 1964 to protest. Twelve burned their draft cards in a symbolic expression of opposition to the war.

In 1965 Congress passed an amendment to the Selective Service Act criminalizing the destruction or mutilation of draft cards. Penalties included fines up to $10,000 and five years in prison. That same year, David J. Miller of Manhattan publicly burned his draft card and became the first person convicted under the new law. Nevertheless, draft card burning continued as the rate of draftees inducted into service accelerated between 1965 and 1967.

The demand for draftees began to decline in 1969, yet the reported violations of the Selective Service Act including draft card destruction actually increased. However, only 544 cases ended in imprisonment of the 31,831 reported violations. A national public movement to abolish the draft rapidly grew. Finally, in 1973 Congress ended the draft and established an all volunteer army.

Sources

Dougan, Clark and Samuel Lipsman, A Nation Divided: The Vietnam Experience. Boston: Boston Publishing Company, 1984.