United States v. O'Brien Brief

United States v. O’Brien Brief  Tanner Sands The Facts David Paul O’Brien and three friends burned their draft cards in front of a crowd in Massachusetts. There were three FBI Agents in the crowd that witnessed the actions. O’Brien was convicted under the 1965 amendment to the Universal Military Training and Service Act which punishes anyone “who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate.” certificate.” He claimed that the act was unconstitutionally restricting his speech. The Massachusetts Court of Appeals ruled that the act w as unconstitutionally restricting speech because the action of burning a draft card was already illegal under the Selective Services System regulation that required registrants to keep their registration certificates in their “personal possession at all times.” Therefore times.”  Therefore this amendment must have been “directed at public as distinguished from private destruction.” Ruling The Supreme Court held that the 1965 amendment is constitutional both as enacted and as applied Majority Opinion (Justice Warren) 1. The court cannot accept an action as “symbolic speech” when “speech” and “nonspeech” elements are combined in the same course of conduct and a sufficiently important governmental interest in regulating the nonspeech element can justify the incidental limitations on First Amendment freedoms. 2. There is an important nonspeech interest in preventing the “destruction” or “mutilation”  of draft cards. 3. Congress has the power to raise r aise and support armies and with that power congress may establish a system of registration. It is also in their power to require people within reason to abide by it. 4. Draft certificates have legitimate and substantial administrative uses. The registration cer tificate provides proof that an individual has registered for the draft. The cer tification certificate shows the eligibility classification of an undescribed individual. Both certificates simplify communication between registrants and local boards. They also carry continual reminders t hat registrants must notify their local board with any change of address . 5. This law serves a distinctively different purpose than the Selective Services System regulation because it restricts the “destruction” or “mutilation” of draft cards regardless regardless of whether that card is on one’s person. No alternative means would more precisely and narrowly assure the continuing availability of Selective Service certificates. 6. This case is different than Stromberg v. C alifornia because displaying a red flag could only be viewed as a communicative action and this act has both speech and non-speech implications. These certificates were meant to make the selective service more efficient so when he destroyed his card he was convicted for the non-communicative impact of his action and nothing else. 7. He addresses O’Brien’s claim that the “purpose” of congress was “to suppress speech.” While Justice Warren acknowledges that the bill was passed very quickly with almost no debate 393-1, the Supreme Court will not strike down an otherwise constitutional law because of the motivations of congress. Justice Marshall took no part in in the consideration or dec ision of these cases

Concurring (Justice Harlan) 1. Justice Harlan does not want to rule out consideration of rare cases where an “incidental” restriction based on an “important or substantial” government interest prevents a speaker from reaching a significant audience with whom he could not otherwise communicate. However, in this case the speaker had other me ans of making his point. Dissent (Justice Douglas) 1. The underlying issue is whether conscription is permissible in the absence of a declaration of war. 2. Justice Douglas briefly addressed symbolic speech in his concurrence in Brandenburg v. Ohio and this case is not consistent with that viewpoint. Comments 1. Draft card burning is not considered speech. I agree with the argument that without limitations on expressive actions, “an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea” it is similar to Bork’s “analogical stampede” argument 2. If symbolic actions were considered speech then every expressive action would fall under the Brandenburg standard which would be extremely overprotective 3. O’Brien makes the distinction that this law is content neutral as it restricts the burning of all draft cards regardless of intent 4. In Stromberg v. California, Tinker v. Des Moines Independent Community School District and Schacht v. United States, the actions that were initially declared illegal were purely speech related. The right to political protest is still protected, it is only suppressed in cases where there are legitimate nonspeech interests protected 5. I understand that the court cannot consider le gislative motivation as a rule, but when only two representatives and one senator directly commented on t he legislation, and congressman Bray blatantly revealed this bill’s purpose, perhaps the courts should make an exce ption. Congressman Bray said “The need of this legislation is clear. Beatniks and so-called ‘campus cults’ have been publicly burning their draft cards to demonstrate their contempt for the United States and our resistance to Communist takeovers. [If] these ‘revolutionaries’ are permitt ed to deface and destroy their draft cards, our entire Selective Service System is dealt a serious blow.” 6. Regarding Blasi’s point that symbolic conduct deserves a high degree of constitutional protection because it appeals to more basic and primitive instincts, the First Amendment is not a blanket protection of all actions that may be considered communicative in some way. It is a protection of speech. 7. In the flag burning case of Street v. New York it seems that the issue of flag burning was not directly addressed. The case was decided because the statute in question permitted the speaker to be punished for merely speaking defiant and contemptuous words about the American flag. 8. Subsequent flag desecration cases seem to be protective of symbolic speech.