U.S. v. O’Brien (1968) – limits on 1st Amendment protected free speech
For the hell of it, I thought I’d post an excerpt of my raw reading notes from one of my Constitutional law cases. More later as far as commentary on the method I’ve developed to learning legal doctrine over the past 24 months. It’s a long tedious process that works great if you have the time for it, not so much if you’re fully employed or otherwise distracted.
U.S. v. O’Brien – 391 U.S. 367 (1968)
Draft card burning case during the Vietnam war – question of whether burning a draft card at a protest constitutes free speech protected under the first amendment, and the constitutionality of 462(b)(3) of the Universal Military Training and Service Act of 1948 and the subsequent amendment of 1965 criminalizing the conduct of someone who knowingly destroys, knowingly mutilates or in any manner changes a certificate (registration certificate)
ICA found the amendment as unconstitutional limit on free speech, holding that the amendment had no valid purpose, focused on public rather than private destruction.
SCOTUS overrules the ICA and says that the amendment is in fact constitutional, pointing out that on its face, the 1965 amendment has nothing to do with speech, and is instead focused on protecting draft cards from destruction. SCOTUS likens draft cards to driver’s licenses, or maintaining tax records.
O’Brien’s arguement is that the 1965 amendment is unconstitutional (1) applied to him because his act was protected symbolic speech under the first amendment, and (2) the amendment as enacted fulfills the purpose of congress to suppress freedom of speech.
In addressing O’Brien’s (1) claim, SCOTUS points out that while acknowleging the grey areas between speech and non-speech, all free speech has its limits. SCOTUS puts forth a 4 part test in which suppression of speech by the government is constitutional:
1) When it is within the constitutional power of the government
2) When it furthers an important or substantial government interest
3) If the governmental interest is unrelated to the suppression of free expression
4) If the incidental restriction on first amendment freedoms is no greater than is essential to further that interest
Court’s reasoning here:
1) When it is within the constitutional power of the government
Derived from Congress’s powers to raise and support an Army
2) When it furthers an important or substantial government interest
Governmental interest in having the selective service system, how the draft card is a integral part of it.
- as proof of registration
- as a document with important dates, numbers
- as a continual reminder that the registrant needs to notify his board of his movements
3) If the governmental interest is unrelated to the suppression of free expression
distinguishes protecting the card from mutilation or destruction from specifically suppressing free speech
distinguishes case with Stromberg v. California that punished people who expressed opposition to organized government through the display of a flag, badge, banner or devise.
4) If the incidental restriction on first amendment freedoms is no greater than is essential to further that interest
(balancing test) says the 1965 amendment is limited just to preventing harm to the selective service process, no more.
On O’Brien’s other charge (2) that the purpose of the 1965 amendment is to suppress freedom of speech, the court in part acknowledges his point, but claims that he is going the wrong way about arguing this point. Court points out that in order to find something facially unconstitutional, especially when dealing with congressional intent, they need something more than a few floor speeches and committee reports.
Points out that only one senator and 2 representatives spoke about the bill before passing it. Besides, what discussion there was on the amendment had to do with the concern of destruction of cards would have on the selective service process.
Harlan’s concurrence – agrees with majority, but cautions on limiting this exception to cases when governmental interest is important and substantial. Also points out that O’Brien could’ve spoken out about his opinion without burning the card.
Douglas’s dissent:
thinks the real question is whether conscription is permissible in the absence of a declaration of war.
Points back to Brandenburg v. Ohio – action is often a method of expression and within the protection of the first amendment – raises the question of whether burning a copy of the constitution or a bible would be considered unprotected “speech”
Linkes 3/13/2007
Talking Points Blog.
The Quality of Justice.
For some, not all a rich year indeed.
Cats of Mirikitani Play.