Miles Rivera

Warriors of Your First Constitutional Right

Why is free speech important in our democracy? To answer this question, I examined two
Supreme Court cases that happened during the Vietnam War regarding the draft. United States
v OBrien was about a young man that burned his draft card in front of a south Boston
courthouse. He was arrested and sentenced to six years for violating an amendment to the
Selective Services Act. Cohen, in Cohen v California, was a 19-year old that wore a jacket with
the phrase Fuck the Draft into a Los Angeles courthouse and was convicted of disturbing the
peace. Both of these cases are very similar but have very different outcomes in the Supreme
Court. The Supreme Court overruled Cohens conviction but upheld OBriens sentence because
it regarded conduct instead of speech. Even though these cases had opposite outcomes in
court, together they show us the struggle to keep the most important right in our democracy.
Freedom of speech is an absolutely essential part of any democracy. To clarify, a democracy is a
form of government in which citizens participate equally, directly or through elected
representatives, in creating the laws by which their society is run. If people are not able to think
and express themselves freely, they cannot contribute equally to society. The minority would
suffer because unpopular opinions or opinions that conflict with government interest would
suppressed and hidden. All other freedoms would also disappear if we were not able to stand
against unreasonable actions committed by our government. As a society, we would not be
able to progress because only one side would be heard. We are very lucky to live in a place and
time where everybody can enjoy the freedom of speech, but individuals must still fight for this
right if it is taken away.
David OBrien was expressing his opinion on the controversial Vietnam War draft; the Supreme
Court didnt deny this, but he violated amendment 462(b)(3) of the Selective Services Act,
giving the court the power to justify abridging OBriens first constitutional right. In 1948, the
United States instituted a peace-time draft called the Selective Service Act, which required all
male American citizens to register with a local draft board when they turn 18. In 1965,
amendment 462(b)(3) made it a completely new crime to "knowingly destroy" draft cards. This
amendment was passed at a time when public burnings of draft cards to protest the Vietnam
War was very popular, so it was believed that Congress passed it to intentionally target
protesters, which would make it a law suppressing free speech and democracy. OBrien
represented himself in court and argued that the Act was unconstitutional, but lost the case.
The Supreme Court ruled that OBriens case regarded conduct instead of speech, and that the
governments interest is meant for the non-communicative part of his actions. Although
462(b)(3) is supposed to keep Selective Services running smoothly, it allowed the government
to convict a man for publicly expressing an opinion that did not agree with their own. The
minority is punished when they are not able to express freely and this is why we need to
exercise our rights and share our grievances.
Thankfully, the checks and balances established within our government do work, even if it is not
always the way we want, and when we exercise our rights lawfully we progress as a society.
Cohen shared his grievances just like OBrien, but when he was unlawfully charged the Supreme
Court overruled the California courts ruling because his case concerned speech instead of
conduct. They ruled that the use of a certain unpleasant four letter word is not fighting speech
and nobody would take his jacket as a direct personal insult. If the Supreme Court ruled in favor
of California then it would be perfectly legal for states to censor their citizens to try and make a
civil society. Cohen v California is a win for all of us and is a great example of when standing
up against our governments actions can make a change.
We can make a difference by speaking up and participating in our democracy. The United
States reduced involvement in Vietnam and withdrew completely in 1973 because of increasing
domestic opposition, such as OBrien and Cohen. Justice Harlan said in regard to Cohen v
California, That the air may at times seem filled with verbal cacophony is, in this sense not a
sign of weakness but of strength. Vulgarity in politics is just simply a side effect of the strong
passion that people have when sharing their opinions and thoughts. If you want to have the
right of free speech, you have to let everybody else have it also. This is something we should be
proud of because it lets us all live in society where we can contribute in deciding how we all live
in this country.