United States v.

OBrien Brief
Tanner Sands
The Facts
David Paul OBrien and three friends burned their draft cards in front of a crowd in Massachusetts.
There were three FBI Agents in the crowd that witnessed the actions. OBrien was convicted under the
1965 amendment to the Universal Military Training and Service Act which punishes anyone who forges,
alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate. He
claimed that the act was unconstitutionally restricting his speech. The Massachusetts Court of Appeals
ruled that the act was unconstitutionally restricting speech because the action of burning a draft card
was already illegal under the Selective Services System regulation that required registrants to keep their
registration certificates in their personal possession at all times. Therefore this amendment must have
been directed at public as distinguished from private destruction.

Ruling
The Supreme Court held that the 1965 amendment is constitutional both as enacted and as applied

Majority Opinion (Justice Warren)
1. The court cannot accept an action as symbolic speech when speech and nonspeech
elements are combined in the same course of conduct and a sufficiently important
governmental interest in regulating the nonspeech element can justify the incidental limitations
on First Amendment freedoms.
2. There is an important nonspeech interest in preventing the destruction or mutilation of
draft cards.
3. Congress has the power to raise and support armies and with that power congress may
establish a system of registration. It is also in their power to require people within reason to
abide by it.
4. Draft certificates have legitimate and substantial administrative uses. The registration certificate
provides proof that an individual has registered for the draft. The certification certificate shows
the eligibility classification of an undescribed individual. Both certificates simplify
communication between registrants and local boards. They also carry continual reminders that
registrants must notify their local board with any change of address.
5. This law serves a distinctively different purpose than the Selective Services System regulation
because it restricts the destruction or mutilation of draft cards regardless of whether that
card is on ones person. No alternative means would more precisely and narrowly assure the
continuing availability of Selective Service certificates.
6. This case is different than Stromberg v. California because displaying a red flag could only be
viewed as a communicative action and this act has both speech and non-speech implications.
These certificates were meant to make the selective service more efficient so when he
destroyed his card he was convicted for the non-communicative impact of his action and
nothing else.
7. He addresses OBriens claim that the purpose of congress was to suppress speech. While
Justice Warren acknowledges that the bill was passed very quickly with almost no debate 393-1,
the Supreme Court will not strike down an otherwise constitutional law because of the
motivations of congress.

Justice Marshall took no part in in the consideration or decision of these cases



Concurring (Justice Harlan)
1. Justice Harlan does not want to rule out consideration of rare cases where an incidental
restriction based on an important or substantial government interest prevents a speaker from
reaching a significant audience with whom he could not otherwise communicate. However, in
this case the speaker had other means of making his point.

Dissent (Justice Douglas)
1. The underlying issue is whether conscription is permissible in the absence of a declaration of
war.
2. Justice Douglas briefly addressed symbolic speech in his concurrence in Brandenburg v. Ohio
and this case is not consistent with that viewpoint.

Comments
1. Draft card burning is not considered speech. I agree with the argument that without limitations
on expressive actions, an apparently limitless variety of conduct can be labeled speech
whenever the person engaging in the conduct intends thereby to express an idea it is similar to
Borks analogical stampede argument
2. If symbolic actions were considered speech then every expressive action would fall under the
Brandenburg standard which would be extremely overprotective
3. OBrien makes the distinction that this law is content neutral as it restricts the burning of all
draft cards regardless of intent
4. In Stromberg v. California, Tinker v. Des Moines Independent Community School District and
Schacht v. United States, the actions that were initially declared illegal were purely speech
related. The right to political protest is still protected, it is only suppressed in cases where there
are legitimate nonspeech interests protected
5. I understand that the court cannot consider legislative motivation as a rule, but when only two
representatives and one senator directly commented on the legislation, and congressman Bray
blatantly revealed this bills purpose, perhaps the courts should make an exception.
Congressman Bray said The need of this legislation is clear. Beatniks and so-called campus
cults have been publicly burning their draft cards to demonstrate their contempt for the United
States and our resistance to Communist takeovers. [If] these revolutionaries are permitted to
deface and destroy their draft cards, our entire Selective Service System is dealt a serious blow.
6. Regarding Blasis point that symbolic conduct deserves a high degree of constitutional
protection because it appeals to more basic and primitive instincts, the First Amendment is not
a blanket protection of all actions that may be considered communicative in some way. It is a
protection of speech.
7. In the flag burning case of Street v. New York it seems that the issue of flag burning was not
directly addressed. The case was decided because the statute in question permitted the speaker
to be punished for merely speaking defiant and contemptuous words about the American flag.
8. Subsequent flag desecration cases seem to be protective of symbolic speech.