United States v. O'Brien

Notable Items:

• if it is within the constitutional power of the Government; [raise and support armies Lichter v. United States, 334 U. S. 742, 334 U. S. 755-758 (1948)]
• if it furthers an important or substantial governmental interest; [The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest....]
• if the governmental interest is unrelated to the suppression of free expression, and [... both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative aspect of O'Brien's conduct.]
• if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

1. the 1965 Amendment is unconstitutional in its application to him, and
2. is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress freedom of speech."

Holding(s) and Disposition:

Material Facts:

• On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse.
• An FBI agent ushered O'Brien to safety inside the courthouse.
• After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law.
• For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts.
• A full recounting of the facts is available below

Procedural History:

• For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts.
• He did not contest the fact that he had burned the certificate.
• He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his anti-war beliefs, as he put it, "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."
• ... at the time O'Brien burned his certificate, an offense was committed by any person, "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate...."
• 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.
• The District Court rejected these arguments, holding that the statute, on its face, did not abridge First Amendment rights, ..., and that the Amendment was a reasonable exercise of the power of Congress to raise armies.
• On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech.
• 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.

Rationale

Warren Majority Opinion

• A full description of the rationale is available below

Harlan Concurrance (??)

• I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an "incidental" restriction upon expression ... in practice has the effect of entirely preventing a "speaker" from reaching a significant audience with whom he could not otherwise lawfully communicate.

Douglas Dissent (??)

• The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war.
• ... this Court has never ruled on the question.
• These precedents demonstrate the appropriateness of restoring the instant case to the calendar for reargument on the question of the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United States.

Full Recounting of Facts

• On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse.
• An FBI agent ushered O'Brien to safety inside the courthouse.
• After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law.
• A list of the material facts is available above

Warren Majority Full Argument

• See Material Facts
• See Procedural History
• Part I [Review of the Statute]
• When a male reaches the age of 18, he is required by the Universal Military Training and Service Act to register with a local draft board.
• ... within five days he is issued a registration certificate....he is issued a Notice of Classification.... Both the registration and classification certificates are small white cards, approximately 2 by 3 inches.
• ... regulations of the Selective Service System required registrants to keep both their registration and classification certificates in their personal possession at all times.
• By the 1965 Amendment, Congress added to § 12(b)(3) of the 1948 Act the provision here at issue, subjecting to criminal liability not only one who "forges, alters, or in any manner changes", but also one who "knowingly destroys, [or] knowingly mutilates" a certificate.
• Amended § 12(b)(3), on its face, deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct. [emphasis added]
• A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting the destruction of books and records.
• 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.
• Part II [Dismissal of First Claim]
• 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.
• 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.
• ... we think it clear that a government regulation is sufficiently justified
  • if it is within the constitutional power of the Government; [raise and support armies Lichter v. United States, 334 U. S. 742, 334 U. S. 755-758 (1948)]
  • if it furthers an important or substantial governmental interest; [The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest....]
  • if the governmental interest is unrelated to the suppression of free expression, and [... both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative aspect of O'Brien's conduct.]
  • 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.
• Part III [Dismissal of Second Claim]
• O'Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress freedom of speech."
• In these cases [Grosjean v. American Press Co., 297 U. S. 233 (1936), and Gomillion v. Lightfoot, 364 U. S. 339 (1960)], the purpose of the legislation was irrelevant, because the inevitable effect -- the "necessary scope and operation," McCray v. United States, 195 U. S. 27, 195 U. S. 59 (1904) -- abridged constitutional rights.
• These cases stand not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional.
• Part IV
• Since the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act is constitutional as enacted and as applied, the Court of Appeals should have affirmed the judgment of conviction entered by the District Court.
• Accordingly, we vacate the judgment of the Court of Appeals, and reinstate the judgment and sentence of the District Court.
• This disposition makes unnecessary consideration of O'Brien's claim that the Court of Appeals erred in affirming hie [sic] conviction on the basis of the nonpossession regulation.
• The core of the rationale is available above