United States v. O'Brien

Jump to content

From Wikipedia, the free encyclopedia

1968 United States Supreme Court case

English Wikisource has original text related to this article:

**United States v. O'Brien **

United States v. O'Brien, 391 U.S. 367 (1968), is a landmark decision of the United States Supreme Court , ruling 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 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 more significant 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 wearing of black armbands to burning of flags — an additional tool to invoke against prohibitions.

Background of the case

[(https://en.wikipedia.org/w/index.php?title=United_States_v._O%27Brien&action=edit&section=1 "Edit section: Background of the case")
]

Draft cards under the Selective Service Act

[(https://en.wikipedia.org/w/index.php?title=United_States_v._O%27Brien&action=edit&section=2 "Edit section: Draft cards under the Selective Service Act")
]

In 1948, the United States instituted a peace-time draft 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 (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

[(https://en.wikipedia.org/w/index.php?title=United_States_v._O%27Brien&action=edit&section=3 "Edit section: 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 Boston 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".

Appeal

[(https://en.wikipedia.org/w/index.php?title=United_States_v._O%27Brien&action=edit&section=4 "Edit section: Appeal")
]

On appeal , 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.

Supreme Court's decision

[(https://en.wikipedia.org/w/index.php?title=United_States_v._O%27Brien&action=edit&section=5 "Edit section: Supreme Court's decision")
]

Chief Justice Earl 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. Nevertheless, Justice Harlan , in his concurring opinion, 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.

…