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Constitutional Law And Politics O'brien.pdf

Finding that a statute could be constitutional even if the motive in passing it was improper, such as quelling protest, Warren showed deference to the legislature in the sphere of military service. He observed that the law covered conduct rather than speech, which meant that the Court should review it more leniently. Expressive conduct that has a symbolic meaning still may be protected by the First Amendment, but the standard of review requires only an important governmental interest that is content-neutral, is not independently unconstitutional, and does not infringe on more speech than is needed to pursue the government's interest. Technically, this section of the opinion may not have had precedential value, for Warren was unsure whether O'Brien's actions even qualified as expressive conduct. But this became the standard used to evaluate First Amendment challenges on such a basis moving forward. Warren was not persuaded that the draft cards were arbitrary, unnecessary pieces of paperwork that served no practical purpose. He felt that they helped the draft process function more smoothly and that Congress should have substantial discretion in the measures that it took to facilitate raising an army. O'Brien was free to verbally criticize the use of draft cards, but burning them directly frustrated the government's interest in keeping draft cards available. The government had no meaningful alternative way to assure their continued use if they were destroyed.

Constitutional Law And Politics O'brien.pdf


O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating 50 U.S.C.App. 462(b), a part of the Universal Military Training and Service Act, subdivision (3) of which applies to any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . ," the words italicized herein having been added by amendment in 1965. The District Court rejected O'Brien's argument that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose. The Court of Appeals held 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, since a Selective Service System regulation required registrants to keep their registration certificates in their "personal possession at all times," 32 CFR 1617.1, and willful violation of regulations promulgated under the Act was made criminal by 50 U.S.C.App. 462(b)(6). The court, however, upheld O'Brien's conviction under 462(b)(6), which, in its view, made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 Amendment.

(Italics supplied.) In the District Court, O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose. [Footnote 3] The District Court rejected these arguments, holding that the statute, on its face, did not abridge First Amendment rights, that the court was not competent to inquire into the motives of Congress in enacting the 1965 Amendment, and that the

On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech. [Footnote 4] At the time the Amendment was enacted, a regulation of the Selective Service System required registrants to keep their registration certificates in their "personal possession at all times." 32 CFR 1617.1 (1962). [Footnote 5] Willful violations of regulations promulgated pursuant to the Universal Military Training and Service Act were made criminal by statute. 50 U.S.C.App. 462(b)(6). The Court of Appeals, therefore, was of the opinion that conduct punishable under the 1965 Amendment was already punishable under the nonpossession regulation, and consequently that the Amendment served no valid purpose; further, that, in light of the prior regulation, the Amendment must have been "directed at public, as distinguished from private, destruction." On this basis, the court concluded that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment. The court ruled, however, that O'Brien's conviction should be affirmed under the statutory provision, 50 U.S.C.App. 462(b)(6), which, in its view, made violation of the nonpossession regulation a crime, because it regarded such violation to be a lesser included offense of the crime defined by the 1965 Amendment. [Footnote 6]

The Government petitioned for certiorari in No. 232, arguing that the Court of Appeals erred in holding the statute unconstitutional, and that its decision conflicted with decisions by the Courts of Appeals for the Second [Footnote 7] and Eighth Circuits [Footnote 8] upholding the 1965 Amendment against identical constitutional challenges. O'Brien cross-petitioned for certiorari in No. 233, arguing that the Court of Appeals erred in sustaining his conviction on the basis of a crime of which he was neither charged nor tried. We granted the Government's petition to resolve the conflict in the circuits, and we also granted O'Brien's cross-petition. We hold that the 1965 Amendment is constitutional both as enacted and as applied. We therefore vacate the judgment of the Court of Appeals and reinstate the judgment and sentence of the District Court without reaching the issue raised by O'Brien in No. 233.

O'Brien nonetheless argues that the 1965 Amendment is unconstitutional in its application to him, and is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress freedom of speech." We consider these arguments separately.

O'Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected "symbolic speech" within the First Amendment. His argument is that the freedom of expression which the First Amendment guarantees includes all modes of "communication of ideas by conduct," and that his conduct is within this definition because he did it in "demonstration against the war and against the draft."

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. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; [Footnote 22] substantial; [Footnote 23] subordinating; [Footnote 24]

paramount; [Footnote 25] cogent; [Footnote 26] strong. [Footnote 27] Whatever imprecision inheres in these terms, we 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. We find that the 1965 Amendment to 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it.

The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. Lichter v. United States, 334 U. S. 742, 334 U. S. 755-758 (1948); Selective Draft Law Cases, 245 U. S. 366 (1918); see also Ex parte Quirin, 317 U. S. 1, 317 U. S. 25-26 (1942). The power of Congress to classify and conscript manpower for military service is "beyond question." Lichter v. United States, supra, at 334 U. S. 756; Selective Draft Law Cases, supra. Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals, within reason, to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation 350c69d7ab


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