O'Brien, United States v. 391 U.S. 367 (1968)

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O'BRIEN, UNITED STATES v. 391 U.S. 367 (1968)

theO'Brien opinion is today widely cited in briefs and judicial opinions defending governmental action against claims of violation of the freedom of speech. In 1965 Congress amended the selective service act to make it a crime to destroy or mutilate a draft registration card. The amendment's legislative history made clear that it was aimed at antiwar protest, but the Supreme Court nonetheless upheld, 8–1, the conviction of a protester for draft card burning, rejecting his first amendment claims.

Writing for the Court, Chief Justice earl warren assumed that symbolic speech of this kind was entitled to First Amendment protection. However, he announced a doctrinal formula now dear to the hearts of government attorneys, a formula that seemed to apply generally to all First Amendment cases: "[W]e 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."

This very case seemed appropriate for application of the formula to overturn the protesters' conviction, but it was not to be. Here, Warren said, the power of the federal government to "conscript manpower" was clear; further, he placed great importance on the government's interests in keeping draft cards intact. As for the purpose to suppress expression, the Chief Justice took away what he had just given to First Amendment challengers: the Court should not inquire, he said, into possible improper congressional motivations for an otherwise valid law. (See legislation.) Finally, he said, the government's interests could not be served by any less restrictive means.

It is hard to avoid the conclusion that the Justices, embattled on political fronts ranging from segregation to school prayers, thought it prudent not to add to the Court's difficulties a confrontation with Congress and the President over the vietnam war. Justice william o. douglas, however, dissented alone on the ground that the Court should consider the constitutionality of military conscription in the absence of a declaration of war by Congress.

Kenneth L. Karst


Ely, John Hart 1975 Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis. Harvard Law Review 88:1482–1508.

Nimmer, Melville B. 1973 The Meaning of Symbolic Speech under the First Amendment. UCLA Law Review 21: 29–62.

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O'Brien, United States v. 391 U.S. 367 (1968)

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