United States V O Brien The O Brien Test

United States v. O’Brien

U. S. Supreme Court
May 27, 1968
U.S. SUPREME COURT: United States v. O’Brien. 391 U.S. 367 (1968).

Facts: O’Brien burned his draft registration card on the front steps of the South Boston courthouse to protest the Vietnam War. The destruction of draft documents is illegal due to 50 U.S.C. App. § 462(b)(3) and the 1965 Amendment .
Issues: Is it illegal to burn the draft document as an expression of free speech protected by the First Amendment?
Holding: It was already a crime to burn the draft cards. The intended message did not excuse the act.
Procedure: district court of Massachusetts – conviction, Court of Appeals overturned. United States Supreme Court Reversed and upheld the original conviction.
Rules of Law: 1st Amendment and 50 U.S.C. App. § 462(b)(3) and the 1965 Amendment
Reasoning: The First Amendment guarantees the right to express your ideas and opinions in words and actions, but those words and actions cannot violate other statutes. The government can limit the First Amendment when it has a significant interest in the act.

50 U.S.C. App. § 462(b)(3) and the 1965 Amendment previously stated that it is a criminal act for “not only one who ‘forges, alters, or in any manner changes’, but also one who ‘knowingly destroys, [or] knowingly mutilates’ a certificate.” 391 U. S. 375
O’Brien intentionally destroyed his draft card rendering it unavailable, thus frustrating this government interest.
US Supreme Court will not strike down a good statute due to intent behind the statute.

Concurring: Harlan – Wished to clarify that this does not restrict all expressive behavior, but only those that meet the criteria of this case and the four assertions of Justice Warren found at 391 U. S. 377.

Dissenting: Douglas – Douglas’s opinion reflected his concern that the draft was only lawful in the case of war that had been officially declared by and act of Congress. This was not the case with Vietnam and so the draft and the cards issued were not possibly Constitutional based on the cases of Holmes v. United States (245 U. S. 366) and Hart v. United States (382 F.2d 1020 (C.A. 3d Cir.)

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