United States v. O'Brien
Encyclopedia
United States v. O'Brien, 391 U.S. 367
(1968), was a decision by the Supreme Court of the United States
, which ruled that a criminal prohibition against burning a draft card
did not violate the First Amendment
's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War
, it considered the law justified by a significant government interest that was unrelated to the suppression of speech and was tailored towards that end.
O'Brien upheld the government's power to prosecute what was becoming a pervasive method of anti-war protest. Its greater legacy, however, was its application of a new constitutional standard. The test articulated in O'Brien has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech, though are ostensibly neutral towards the content of that speech, violate the First Amendment. Though the O'Brien test has rarely invalidated laws that the Court has found to be "content neutral," it has given those engaging in expressive conduct—from the wearing of black armbands
to the burning of flags
—an additional tool to invoke against prohibitions.
with the Universal Military Training and Service Act (also called the Selective Service Act
), which required all male American citizens to register with a local draft board upon reaching the age of 18. In 1965, Congress
amended the Act to prohibit the willful destruction of "draft cards", or registration certificates. These were small white cards bearing the registrant's identifying information, the date and place of registration, and his Selective Service number, which indicated his state of registration, local board, birth year, and his chronological position in the local board's classification record.
The Act had already required all eligible men to carry the certificate at all times, and prohibited alterations that would perpetrate a forgery or fraud. The 1965 amendment, however, made it a separate crime under 50 U.S.C.
§ 462(b)(3) to "knowingly destroy" or "knowingly mutilate" the card. This amendment was passed at a time when public burnings of draft cards to protest the Vietnam War
were a growing phenomenon, many observers (including the U.S. Court of Appeals for the First Circuit) believed that Congress had intentionally targeted such protesters.
Courthouse, in front of a crowd that happened to include several FBI agents. After the four men came under attack from some of the crowd, an FBI agent ushered O'Brien inside the courthouse and advised him of his rights. O'Brien proudly confessed to the agent and produced the charred remains of the certificate. He was subsequently indicted for violating § 462(b)(3) and put on trial in the U.S. District Court for the District of Massachusetts.
O'Brien insisted on representing himself at his trial and argued that the Act was unconstitutional. He explained to the jury
that he burned the draft card publicly to persuade others to oppose the war, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." O'Brien was convicted and sentenced to the maximum of six years, as a "youth offender" under the now-repealed Youth Corrections Act, which submitted him to the custody of the Attorney General "for supervision and treatment."
, the First Circuit Court of Appeals
ruled that the 1965 amendment ran afoul of the First Amendment because it singled out "persons engaging in protest for special treatment." However, although O'Brien could not be convicted for protesting, the First Amendment could not protect him from being required to carry a draft card. The court believed that all the factual issues necessary for a "nonpossession" conviction had been fully litigated, and so affirmed his conviction on that basis and remanded for appropriate resentencing.
Both O'Brien and the United States petitioned for review
by the Supreme Court, with the government in United States v. O'Brien (No. 232) challenging the lower court's invalidation of § 462(b)(3) and O'Brien challenging in the nonpossession conviction in O'Brien v. United States (No. 233). The Court decided both actions together and, in a 7-1 decision, upheld the constitutionality of § 462(b)(3), vacated the First Circuit's decision and reinstated O'Brien's sentence. O'Brien had also argued to the Court that the First Circuit had unconstitutionally sustained his conviction for a crime of which he was neither convicted nor tried, and much of the Court's questioning of the government during oral argument
challenged this ruling. However, with that decision vacated, the Court did not reach that issue.
Warren
's decision for the Court rejected O'Brien's argument that the 1965 amendment to § 462(b)(3) was only passed to stifle the speech of anti-war protesters. The law did not restrict speech on its face, but instead only addressed conduct that was not necessarily expressive, and applied without regard to whether the draft card was destroyed in private or before an audience. It also did not matter to the Court if Congress had passed it with the intention of stifling protest, as long as it could be justified on another basis; Chief Justice Warren declared that "this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive."
Despite finding that § 462(b)(3) only prohibited conduct, the Court continued its First Amendment inquiry to determine whether the rule was unduly restrictive of the element of O'Brien's conduct that was expressive. The Court plainly questioned whether this communicative element was "sufficient to bring into play the First Amendment" in O'Brien's case, and so this portion of the Court’s opinion was effectively hypothetical musing. Nevertheless, Justice
Harlan
, in his concurring opinion, wisely recognized this as the "crux" of the Court’s decision.
Warren wrote that when a regulation prohibits conduct that combines "speech" and "nonspeech" elements, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." The regulation must 1) be within the constitutional power of the government to enact, 2) further an important or substantial government interest, 3) that interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it), and 4) prohibit no more speech than is essential to further that interest. The Court ruled that § 462(b)(3) satisfied this test.
First, the law was, to the Court, unquestionably within the "broad and sweeping" constitutional powers of Congress under Article I to "raise and support armies" by "classify[ing] and conscript[ing] manpower for military service." Under the second prong of the test, the issuance of registration certificates was regarded as a "legitimate and substantial administrative aid" in the functioning of the draft system, as were laws that insured the "continuing availability" of issued draft cards. The Court rejected O’Brien’s characterization of the draft cards as nothing more than a superfluous notification of registration. Instead, the cards advanced "the smooth and proper functioning of the system" through functions such as providing proof of registration, facilitating contact between the registrant and draft board, reminding the registrant of the need to notify the board of changes of address, and further preventing fraud or forgery. Third, the registration and raising of troops was unrelated to the suppression of speech. And fourth, the Court saw "no alternative means" by which the government could ensure that draft cards would continue to be available than a law that prohibited their willful destruction.
Both the government’s interest and § 462(b)(3), Warren wrote, "are limited to the noncommunicative aspect of O'Brien's conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System. When O'Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted."
Harlan
, though joining Warren's opinion, wrote a brief separate concurrence. Harlan wished to extend First Amendment protection to instances in which, though the majority's test was satisfied, the regulation at issue additionally had "the effect of entirely preventing a ‘speaker’ from reaching a significant audience with whom he could not otherwise lawfully communicate." This was adopted in later cases by the Court as an additional prong of the O’Brien test, that the regulation must leave (as phrased in later decisions) "ample alternative channels" of communication. As Harlan felt that O’Brien had other means by which he could communicate his message, he had no problem affirming his conviction.
was the sole dissenter. Though he did not express disagreement with the Court's First Amendment analysis, he believed that the asserted government interest was only valid when the nation was in a state of war as declared by Congress (which had not been the case since World War II
). Douglas questioned whether a peacetime draft was even constitutional, and wanted to reschedule O'Brien for reargument along with two cases challenging the draft that were denied review by the Court the same day O'Brien was handed down, even though the parties in O'Brien had not presented arguments or briefs
on that issue.
, which involved public school students who were suspended for wearing black armbands, and Cohen v. California
, in which a man was convicted for disturbing the peace
for wearing a jacket that bore the words "Fuck the Draft" in a state courthouse.
Due in part to increasing domestic opposition, the U.S. reduced its involvement in Vietnam and completed withdrawal of its forces in 1973; the draft ended the same year. On January 21, 1977, the day after his inauguration
, President Jimmy Carter
signed Executive Order 11967, which granted a full pardon
to anyone who had committed or been convicted of a non-violent violation of the Selective Service Act. This included everyone from draft dodger
s to protestors such as O'Brien. The pardon covered all such acts committed between August 4, 1964, the date of the Gulf of Tonkin Incident
, and March 28, 1973, the end of American withdrawal.
In 1980, however, Congress reinstated the requirement that young men register with the Selective Service System, but without reinstating an active draft. In 1984, the Supreme Court upheld the registration requirement against a claim that it violated the privilege against self-incrimination. The following year, it upheld the conviction of a man who refused to register despite his argument that this refusal constituted a political protest. , male citizens (and many male noncitizen residents) between the ages of 18 to 25 are still required to register for preparation should a military draft be reinstated. The same provision in § 462(b)(3) of the Act under which O'Brien was convicted remains law, though destroying draft cards is no longer a common form of protest and recent arrests for that offense are unknown.
Two years later, the Court declared in Spence v. Washington that the O'Brien test was "inapplicable" when the asserted government interest "directly related to expression in the context of activity." Spence ruled that a man who displayed an American flag with a peace symbol taped to it was engaging in protected expression; in 1989, the Court similarly upheld the right to burn the American flag as expressive conduct in Texas v. Johnson
.
The Court revisited the necessary fit between the important governmental interest and the means to actualize that interest in Clark v. C.C.N.V.
, 468 U.S. 288 (1984), in which it held that the nexus need merely be reasonable. The Court also merged its doctrine of time-place-manner restrictions and the O'Brien test into an intermediate scrutiny
hybrid.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1968), was a decision by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, which ruled that a criminal prohibition against burning a draft card
Draft-card burning
Draft-card burning was a symbol of protest performed by thousands of young American men as part of the opposition to the involvement of the United States in the Vietnam War. Beginning in May 1964, some activists burned their draft cards at anti-war rallies and demonstrations. By May 1965 it was...
did not violate the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
, it considered the law justified by a significant government interest that was unrelated to the suppression of speech and was tailored towards that end.
O'Brien upheld the government's power to prosecute what was becoming a pervasive method of anti-war protest. Its greater legacy, however, was its application of a new constitutional standard. The test articulated in O'Brien has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech, though are ostensibly neutral towards the content of that speech, violate the First Amendment. Though the O'Brien test has rarely invalidated laws that the Court has found to be "content neutral," it has given those engaging in expressive conduct—from the wearing of black armbands
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...
to the burning of flags
Texas v. Johnson
Texas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
—an additional tool to invoke against prohibitions.
Draft cards under the Selective Service Act
In 1948, the United States instituted a peace-time draftConscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...
with the Universal Military Training and Service Act (also called the Selective Service Act
Selective Service Act
Selective Service Act may refer to:* Selective Service Act of 1917, or Selective Draft Act, which was passed by the Congress of the United States on May 18, 1917. It was for men to go to WWI at a young age....
), which required all male American citizens to register with a local draft board upon reaching the age of 18. In 1965, Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
amended the Act to prohibit the willful destruction of "draft cards", or registration certificates. These were small white cards bearing the registrant's identifying information, the date and place of registration, and his Selective Service number, which indicated his state of registration, local board, birth year, and his chronological position in the local board's classification record.
The Act had already required all eligible men to carry the certificate at all times, and prohibited alterations that would perpetrate a forgery or fraud. The 1965 amendment, however, made it a separate crime under 50 U.S.C.
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
§ 462(b)(3) to "knowingly destroy" or "knowingly mutilate" the card. This amendment was passed at a time when public burnings of draft cards to protest the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
were a growing phenomenon, many observers (including the U.S. Court of Appeals for the First Circuit) believed that Congress had intentionally targeted such protesters.
O'Brien's protest and conviction
On the morning of March 31, 1966, David Paul O'Brien and three companions burned their draft cards on the steps of the South BostonSouth Boston, Massachusetts
South Boston is a densely populated neighborhood of Boston, Massachusetts, located south and east of the Fort Point Channel and abutting Dorchester Bay. One of America's oldest and most historic neighborhoods, South Boston was formerly known as Dorchester Neck, and today is called "Southie" by...
Courthouse, in front of a crowd that happened to include several FBI agents. After the four men came under attack from some of the crowd, an FBI agent ushered O'Brien inside the courthouse and advised him of his rights. O'Brien proudly confessed to the agent and produced the charred remains of the certificate. He was subsequently indicted for violating § 462(b)(3) and put on trial in the U.S. District Court for the District of Massachusetts.
O'Brien insisted on representing himself at his trial and argued that the Act was unconstitutional. He explained to the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
that he burned the draft card publicly to persuade others to oppose the war, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." O'Brien was convicted and sentenced to the maximum of six years, as a "youth offender" under the now-repealed Youth Corrections Act, which submitted him to the custody of the Attorney General "for supervision and treatment."
Appeal
On appealAppeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
, the First Circuit Court of Appeals
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
ruled that the 1965 amendment ran afoul of the First Amendment because it singled out "persons engaging in protest for special treatment." However, although O'Brien could not be convicted for protesting, the First Amendment could not protect him from being required to carry a draft card. The court believed that all the factual issues necessary for a "nonpossession" conviction had been fully litigated, and so affirmed his conviction on that basis and remanded for appropriate resentencing.
Both O'Brien and the United States petitioned for review
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
by the Supreme Court, with the government in United States v. O'Brien (No. 232) challenging the lower court's invalidation of § 462(b)(3) and O'Brien challenging in the nonpossession conviction in O'Brien v. United States (No. 233). The Court decided both actions together and, in a 7-1 decision, upheld the constitutionality of § 462(b)(3), vacated the First Circuit's decision and reinstated O'Brien's sentence. O'Brien had also argued to the Court that the First Circuit had unconstitutionally sustained his conviction for a crime of which he was neither convicted nor tried, and much of the Court's questioning of the government during oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
challenged this ruling. However, with that decision vacated, the Court did not reach that issue.
Supreme Court's decision
Chief JusticeChief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
's decision for the Court rejected O'Brien's argument that the 1965 amendment to § 462(b)(3) was only passed to stifle the speech of anti-war protesters. The law did not restrict speech on its face, but instead only addressed conduct that was not necessarily expressive, and applied without regard to whether the draft card was destroyed in private or before an audience. It also did not matter to the Court if Congress had passed it with the intention of stifling protest, as long as it could be justified on another basis; Chief Justice Warren declared that "this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive."
Despite finding that § 462(b)(3) only prohibited conduct, the Court continued its First Amendment inquiry to determine whether the rule was unduly restrictive of the element of O'Brien's conduct that was expressive. The Court plainly questioned whether this communicative element was "sufficient to bring into play the First Amendment" in O'Brien's case, and so this portion of the Court’s opinion was effectively hypothetical musing. Nevertheless, Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
, in his concurring opinion, wisely recognized this as the "crux" of the Court’s decision.
Warren wrote that when a regulation prohibits conduct that combines "speech" and "nonspeech" elements, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." The regulation must 1) be within the constitutional power of the government to enact, 2) further an important or substantial government interest, 3) that interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it), and 4) prohibit no more speech than is essential to further that interest. The Court ruled that § 462(b)(3) satisfied this test.
First, the law was, to the Court, unquestionably within the "broad and sweeping" constitutional powers of Congress under Article I to "raise and support armies" by "classify[ing] and conscript[ing] manpower for military service." Under the second prong of the test, the issuance of registration certificates was regarded as a "legitimate and substantial administrative aid" in the functioning of the draft system, as were laws that insured the "continuing availability" of issued draft cards. The Court rejected O’Brien’s characterization of the draft cards as nothing more than a superfluous notification of registration. Instead, the cards advanced "the smooth and proper functioning of the system" through functions such as providing proof of registration, facilitating contact between the registrant and draft board, reminding the registrant of the need to notify the board of changes of address, and further preventing fraud or forgery. Third, the registration and raising of troops was unrelated to the suppression of speech. And fourth, the Court saw "no alternative means" by which the government could ensure that draft cards would continue to be available than a law that prohibited their willful destruction.
Both the government’s interest and § 462(b)(3), Warren wrote, "are limited to the noncommunicative aspect of O'Brien's conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System. When O'Brien deliberately rendered unavailable his registration certificate, he wilfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted."
Harlan's concurrence
JusticeAssociate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
, though joining Warren's opinion, wrote a brief separate concurrence. Harlan wished to extend First Amendment protection to instances in which, though the majority's test was satisfied, the regulation at issue additionally had "the effect of entirely preventing a ‘speaker’ from reaching a significant audience with whom he could not otherwise lawfully communicate." This was adopted in later cases by the Court as an additional prong of the O’Brien test, that the regulation must leave (as phrased in later decisions) "ample alternative channels" of communication. As Harlan felt that O’Brien had other means by which he could communicate his message, he had no problem affirming his conviction.
Douglas's dissent
Justice DouglasWilliam O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
was the sole dissenter. Though he did not express disagreement with the Court's First Amendment analysis, he believed that the asserted government interest was only valid when the nation was in a state of war as declared by Congress (which had not been the case since World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
). Douglas questioned whether a peacetime draft was even constitutional, and wanted to reschedule O'Brien for reargument along with two cases challenging the draft that were denied review by the Court the same day O'Brien was handed down, even though the parties in O'Brien had not presented arguments or briefs
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
on that issue.
Vietnam War protests and developments in the draft
As the Vietnam War became more unpopular, the draft became more of a focal point for opposition and, despite O'Brien, public protests involving the burning of draft cards proliferated. Though the Court has not revisited this specific issue, the Court ruled for other anti-war protesters very soon after O'Brien in Tinker v. Des Moines Independent Community School DistrictTinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...
, which involved public school students who were suspended for wearing black armbands, and Cohen v. California
Cohen v. California
Cohen v. California, 403 U.S. 15 was a United States Supreme Court case dealing with freedom of speech. The Court overturned a disturbing the peace conviction of a man wearing a jacket decorated with profanity.-Background of the case:...
, in which a man was convicted for disturbing the peace
Disturbing the Peace
Disturbing the Peace is the second studio album by Alcatrazz, and is the only one featuring Steve Vai on guitar. One of the singles, God Blessed Video, can be found on the fictional radio station, V-Rock, on Grand Theft Auto: Vice City. Weeks on Chart: 7, Peak: #133...
for wearing a jacket that bore the words "Fuck the Draft" in a state courthouse.
Due in part to increasing domestic opposition, the U.S. reduced its involvement in Vietnam and completed withdrawal of its forces in 1973; the draft ended the same year. On January 21, 1977, the day after his inauguration
Inauguration
An inauguration is a formal ceremony to mark the beginning of a leader's term of office. An example is the ceremony in which the President of the United States officially takes the oath of office....
, President Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
signed Executive Order 11967, which granted a full pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
to anyone who had committed or been convicted of a non-violent violation of the Selective Service Act. This included everyone from draft dodger
Draft dodger
Draft evasion is a term that refers to an intentional failure to comply with the military conscription policies of the nation to which he or she is subject...
s to protestors such as O'Brien. The pardon covered all such acts committed between August 4, 1964, the date of the Gulf of Tonkin Incident
Gulf of Tonkin Incident
The Gulf of Tonkin Incident, or the USS Maddox Incident, are the names given to two incidents, one fabricated, involving North Vietnam and the United States in the waters of the Gulf of Tonkin...
, and March 28, 1973, the end of American withdrawal.
In 1980, however, Congress reinstated the requirement that young men register with the Selective Service System, but without reinstating an active draft. In 1984, the Supreme Court upheld the registration requirement against a claim that it violated the privilege against self-incrimination. The following year, it upheld the conviction of a man who refused to register despite his argument that this refusal constituted a political protest. , male citizens (and many male noncitizen residents) between the ages of 18 to 25 are still required to register for preparation should a military draft be reinstated. The same provision in § 462(b)(3) of the Act under which O'Brien was convicted remains law, though destroying draft cards is no longer a common form of protest and recent arrests for that offense are unknown.
Subsequent First Amendment decisions
For a few years following O'Brien, the decision was primarily cited to by the Court for the proposition that an illicit legislative motive would not render a law unconstitutional. Finally, in 1972, the Court relied in part on O'Brien to invalidate a law that prohibited picketing outside public schools that was not related to a labor dispute. Quoting O'Brien, the Court held that the law "imposes a selective restriction on expressive conduct far 'greater than is essential to the furtherance of [a substantial governmental] interest.'"Two years later, the Court declared in Spence v. Washington that the O'Brien test was "inapplicable" when the asserted government interest "directly related to expression in the context of activity." Spence ruled that a man who displayed an American flag with a peace symbol taped to it was engaging in protected expression; in 1989, the Court similarly upheld the right to burn the American flag as expressive conduct in Texas v. Johnson
Texas v. Johnson
Texas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
.
The Court revisited the necessary fit between the important governmental interest and the means to actualize that interest in Clark v. C.C.N.V.
Clark v. C.C.N.V.
Clark, Secretary of the Interior, et al. V. Community Creative Non-Violence et al., 468 U.S. 288 was a United States Supreme Court case that challenged the National Park Service's regulation which specifically prohibited sleeping in Lafayette Park and the National Mall...
, 468 U.S. 288 (1984), in which it held that the nexus need merely be reasonable. The Court also merged its doctrine of time-place-manner restrictions and the O'Brien test into an intermediate scrutiny
Intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny ....
hybrid.
See also
- List of United States Supreme Court cases, volume 391
- Conscription in the United StatesConscription in the United StatesConscription in the United States has been employed several times, usually during war but also during the nominal peace of the Cold War...
- Opposition to the Vietnam WarOpposition to the Vietnam WarThe movement against US involvment in the in Vietnam War began in the United States with demonstrations in 1964 and grew in strength in later years. The US became polarized between those who advocated continued involvement in Vietnam, and those who wanted peace. Peace movements consisted largely of...
External links
- Audio recording of oral argument in United States v. O'Brien in RealAudioRealAudioRealAudio is a proprietary audio format developed by RealNetworks and first released in April 1995. It uses a variety of audio codecs, ranging from low-bitrate formats that can be used over dialup modems, to high-fidelity formats for music. It can also be used as a streaming audio format, that is...
format. - First Amendment Library entry on United States v. O'Brien; includes list of newspaper and law review articles about the case.