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Case Digest: United States v. O’Brien (1968)

 

United States v. O’Brien (1968)

Facts.

  1. David O’Brien was taken by an FBI agent inside the courthouse for publicly burning his draft card.
  2. O’Brien was charged with violating the provision against destroying draft cards. He used his trial as a vehicle to convey his anti-war views to the public and argue that banning the burning of draft cards infringed on free speech. However, he was convicted and sentenced to six years of custody as a youth offender.
  3. The Court has held that, when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

 

Issue.

Whether or not the 1965 Amendment under Section 462(b)(3) of the Universal Military Training and Service Act, or the Selective Service Act, is unconstitutional

 

Pleading.

O’Brien’s argument was that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose.

 

Held.

No. The 1965 Amendment plainly does not abridge free speech on its face. P. 391 U.S. 375.

 

Primary Holding.

Since the government has an important interest in an effective draft system, the First Amendment does not void a law against burning draft cards, esp. since the act of burning a draft card does not implicate a substantial speech interest.

 

Ruling.

The 1965 Amendment plainly does not abridge free speech on its face. P. 391 U.S. 375.

 

Constitutional grounds. (see page 11)

A government regulation is sufficiently justified if:

  1. it is within the constitutional power of the government;
  2. It furthers an important or substantial governmental interest;
  3. The governmental interest is unrelated to the suppression of free expression;
  4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

1965 Amendment to S12(b)(3) of UMTSA meets all of these requirements. Ergo, O’Brien can be convicted for violating it.

 

Direction of the case.

(1)   District Court - O’Brien’s argument rejected by court; - (2) Court of Appeals - held that the 1965 Amendment unconstitutional; upheld O’Brien’s conviction under S 462(b)(6);  - (3) Government petitioned for certiorari; O’Brien cross-petitioned; both were granted - Court held that the 1965 Amendment is constitutional both as enacted and as applied

 

Supplementing facts.

  1. He was indicted, tried, and convicted for violating 50 U.S.C. App. S 462(b)(3) of the Universal Military Training Service Act which applies to any person “who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate…” (note: the words italicized herein had been added by 1965 Amendment)
  2. Court of Appeals - held that the 1965 Amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 Amendment was already punishable.
  3. Selective Service System regulation required registrants to keep their registration certificates in their “personal possession at all times.”
  4. The CA convicted O’Brien’s under S 462(b)(6) or the nonpossession act, a lesser included offense of the crime defined by the 1965 Amendment.
  5. (i) O’Brien was convicted only for the willful frustration of that governmental interest.
  6. Government petitioned for certiorari, arguing that the CA erred in holding the statute unconstitutional.
  7. Amended S12(b)(3) deals with conduct having no connection with
  8. The registration certificate serves many purposes in addition to initial notification, contrary to O’Brien’s argument that it is useless.
  9. The knowing destruction or mutilation of someone else’s certificates would therefore violate the statute, but not the nonpossession regulations.
  10. Both the governmental interest and operation of the 1965 Amendment are limited to the noncommunicative aspect of O’Brien’s conduct.

 

Concurring Opinion.

John Marshall Harlan II - his concern is that the First Amendment should provide alternative, lawful channels of communication.

 

Dissenting Opinion.

William Orville Douglas - he argued that a draft might not be appropriate in “peacetime.” He felt that the government did not have an important interest in draft cards unless war had been declared.

 

Recused. (To disqualify or remove oneself as a judge over a particular proceeding because of one's conflict of interest. ... In addition, any party in a case may make a motion to require the judge to recuse herself from hearing the case., legal-dictionary.thefreedictionary.com)

●       Thurgood Marshall

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