Today in Supreme Court History: January 24, 1968

1/24/1968: United States v. O'Brien argued.

 

Comments

[JoeFromtheBronx]

This is the draft card burning case.

The opinion is important for providing a test for non-verbal communication that is used for expressive purposes.

Only Douglas dissented. He used the dissent to speak against the Vietnam War. He later (see his concurrence in Brandenburg v. Ohio) voiced his dissent on First Amendment grounds:

But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment.

The Supreme Court shabbily treated David O'Brien, who received a heavy sentence ("for a maximum period of six years for supervision and treatment") for an act of symbolic speech. The law was clearly targeted at the expression, not neutral non-speech reasons.

If he was guilty of anything, it was of a minor crime of no longer possessing a draft card. The lower court realized this fact even if it did not totally overturn his sentence.

[Jack Jordan]

For the most part, the Court seemed to be correct:

"We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."

But the Court would have been more clear and more correct if it didn't adhere to the useless and confusing distinction between "speech" and "non-speech." The expressions "freedom of speech" and "freedom of the press" (or "liberty of the press") are idiomatic expressions that should not be used literally.

A better distinction to draw is between the expression or communication of an idea and conduct that does more than merely express or communicate an idea. The Court was correct that the law did not punish the expression of an idea. It punished the destruction of an official document that supported--at least, in principle--a function of national government that was expressly and specifically included in Article I.

I agree with Justice Douglas's dissent (the Court should have ordered briefing re: whether a draft to support a war that wasn't declared by Congress was unconstitutional). Every federal judge swore to support our Constitution, not merely decide whatever issue the parties decided to argue.

[JoeFromtheBronx]

The issue here is not that O'Brien has a right to do anything as long as it is expressive. The main issue is that the law is not neutral.

A neutral regulation against burning or non-possession of a draft card can be conceived. There was already a law for that.

The new law, which had a large penalty, here targeted protest. The burning of draft cards was targeted because of its expressive purposes. The one member of the House who voted against the law flagged just that problem.

The lower court noted:

It requires but little analysis to see that this occurs when, and only when, the destruction is, as in the case at bar, a witnessed event. We would be closing our eyes in the light of the prior law if we did not see on the face of the amendment that it was precisely directed at public as distinguished from private destruction. In other words, a special offense was committed by persons such as the defendant who made a spectacle of their disobedience.

In singling out persons engaging in protest for special treatment the amendment strikes at the very core of what the First Amendment protects. It has long been beyond doubt that symbolic action may be protected speech.

The lower court did not take him off the hook. But flagged that he was arrested and convicted not for the minor acts that reasonably could be prosecuted. That made his punishment problematic:

"we do hold that fairness to the defendant requires that he be resentenced upon considerations affirmatively divorced from impermissible factors"

On this issue, I'm particularly influenced by Rodney Smolla's discussion in Free Speech in an Open Society.

The Supreme Court took more care years later to strike down a law against flag burning which was not a neutral law.

[JoeFromtheBronx]

"whether a draft to support a war that wasn't declared by Congress was unconstitutional"

The policy of the Supreme Court deciding specific issues, including those specifically briefed and appropriately raised following the rules in place, is a separate issue.

If SCOTUS wanted to address this issue, there were other cases that specifically addressed it. As to the merits, I'm unsure why the draft would not be constitutional specifically.

The constitutional argument, if there be one, seems more that the "war" overall was unconstitutional. If the Vietnam War (or Korean War) was constitutional, the draft likely was.

And, there was a draft before and after Vietnam so laws protecting draft cards do not seem tied to the specific war anyhow.

[The Margrave of Azilia]

It would be politically impossible for the Court to hold the draft unconstitutional, even for undeclared wars. Not after so many young men were drafted, and got killed or maimed, in undeclared wars. What's the Court going to say - "These young men from past wars were illegally killed/mutilated?" Not going to happen.

[John F. Carr]

He reminds me of the guy who heard that flag burners would be prosecuted and went out to burn a flag in defiance.

https://reason.com/volokh/2026/01/22/executive-order-banning-flag-burning-jeopardizes-flag-burners-prosecution-for-illegal-fire-lighting-in-national-park/

[BrotherMovesOn]

My parents were friends of the family. Decades later I interviewed him for a college project. Very nice guy.
He was a true pacifist. He could've avoided incarceration but chose not to.
He lived in NYC and became a psychologist.

[JoeFromtheBronx]

Thanks for the information. It's interesting to me what became of these people. A SCOTUS opinion is not the end of the story.

[BrotherMovesOn]

Very true.

[BrotherMovesOn]

If he reminds you of the Lafayette Park guy for a couple of seconds that's understandable.
If you equate the two you're missing the point.