Draft Card Burning

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The burning of Selective Service registration certificates—or "draft cards"—was a brief and dramatic episode that punctuated the early opposition to the vietnam war. Many draft registrants, often before television cameras, publicly burned their cards to demonstrate their refusal to participate in the draft. These events attracted wide attention and often served as a rallying point for war protesters.

Congress responded in 1965 by amending the Universal Military Training and Service Act to make it a felony when any person "knowingly destroys [or] knowingly mutilates" his registration certificate. This law was challenged by David O'Brien with the aid of the american civil libertiesunion. O'Brien had burned his registration certificate before a sizable Boston crowd, including several FBI agents. He was indicted, tried, convicted, and sentenced to prison in the Massachusetts District Court, but the United States Court of Appeals held that the 1965 law unconstitutionally abridged freedom of speech because it interfered with O'Brien's "symbolic" protest against the war.

In United States v. O'Brien (1968), the Supreme Court in an opinion by Chief Justice earl warren reversed the Court of Appeals and upheld the challenged law and O'Brien's conviction. The Court first ruled that the Government has a "substantial interest in assuring the continued availability" of draft cards—for example, so that the individual can prove he has registered and so communication between registrants and local boards can be facilitated, particularly in an emergency. Second, in a more far-reaching holding, the Court rejected O'Brien's claim that the 1965 amendment was unconstitutional because Congress sought to suppress freedom of speech. The Court did not determine whether that in fact was Congress's purpose. Instead it ruled that such a purpose would not invalidate the law in light of the principle that courts may not "restrain the exercise of lawful [congressional] power on the assumption that a wrongful purpose or motive has caused the power to be exercised." (See mccray v. united states.)

Only Justice william o. douglas dissented from the Court's decision, in an opinion that dwelt less on draft card burning than on the power of Congress to initiate a peacetime draft. The O'Brien case led to a sharp curtailment of draft card burning and opponents of the Vietnam War turned to other forms of protest.

Norman Dorsen


Alfange, Dean, Jr. 1968 Free Speech and Symbolic Conduct: The Draft Card Burning Case. Supreme Court Review 1968: 1–52.