Draft cards under the Selective Service Act

In 1948, the United States instituted a peace-time draft with the Universal Military Training and Service Act (also called the Selective Service Act), which required all male American citizens to register with a local draft board upon reaching the age of 18. In 1965, Congress amended the act to prohibit the willful destruction of "draft cards" or registration certificates. These were small white cards bearing the registrant's identifying information, the date and place of registration, and his Selective Service number, which indicated his state of registration, local board, birth year, and his chronological position in the local board's classification record.

The act had already required all eligible men to carry the certificate at all times, and prohibited alterations that would perpetrate a forgery or fraud. The 1965 amendment, however, made it a separate crime under 50 U.S.C. § 462(b)(3) to "knowingly destroy" or "knowingly mutilate" the card. This amendment was passed at a time when public burnings of draft cards to protest the Vietnam War were a growing phenomenon, many observers (including the U.S. Court of Appeals for the First Circuit) believed that Congress had intentionally targeted such protesters.^{[lower-alpha 1]}

O'Brien's protest and conviction

On the morning of March 31, 1966, David Paul O'Brien and three companions burned their draft cards on the steps of the South Boston Courthouse, in front of a crowd that happened to include several FBI agents. After the four men came under attack from some of the crowd, an FBI agent ushered O'Brien inside the courthouse and advised him of his rights. O'Brien proudly confessed to the agent and produced the charred remains of the certificate. He was subsequently indicted for violating § 462(b)(3) and put on trial in the U.S. District Court for the District of Massachusetts.^[2]

O'Brien insisted on representing himself at his trial and argued that the act was unconstitutional. He explained to the jury that he burned the draft card publicly to persuade others to oppose the war, "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". O'Brien was convicted and sentenced to the maximum of six years, as a "youth offender" under the now-repealed Youth Corrections Act, which submitted him to the custody of the Attorney General "for supervision and treatment".^{[lower-alpha 2]}

Appeal

On appeal, the First Circuit Court of Appeals ruled that the 1965 amendment ran afoul of the First Amendment because it singled out "persons engaging in protest for special treatment".^[3] However, although O'Brien could not be convicted for protesting, the First Amendment could not protect him from being required to carry a draft card. The court believed that all the factual issues necessary for a "nonpossession" conviction had been fully litigated, and so affirmed his conviction on that basis and remanded for appropriate resentencing.^[4]

Both O'Brien and the United States petitioned for review by the Supreme Court, with the government in United States v. O'Brien (No. 232) challenging the lower court's invalidation of § 462(b)(3) and O'Brien challenging in the nonpossession conviction in O'Brien v. United States (No. 233).^{[lower-alpha 3]} The court decided both actions together and, in a 7–1 decision, upheld the constitutionality of § 462(b)(3), vacated the First Circuit's decision and reinstated O'Brien's sentence. O'Brien had also argued to the court that the First Circuit had unconstitutionally sustained his conviction for a crime of which he was neither convicted nor tried, and much of the court's questioning of the government during oral argument challenged this ruling. However, with that decision vacated, the court did not reach that issue.

Harlan's concurrence

Justice John Marshall Harlan II, though joining Warren's opinion, wrote a brief separate concurrence.^[10] Harlan wished to extend First Amendment protection to instances in which, though the majority's test was satisfied, the regulation at issue additionally had "the effect of entirely preventing a 'speaker' from reaching a significant audience with whom he could not otherwise lawfully communicate". This was adopted in later cases by the court as an additional prong of the O'Brien test, that the regulation must leave (as phrased in later decisions) "ample alternative channels" of communication. As Harlan felt that O'Brien had other means by which he could communicate his message, he had no problem affirming his conviction.

Douglas's dissent

Justice William O. Douglas was the sole dissenter.^[11] Though he did not express disagreement with the court's First Amendment analysis, he believed that the asserted government interest was only valid when the nation was in a state of war as declared by Congress (which had not been the case since World War II). Douglas questioned whether a peacetime draft was even constitutional, and wanted to reschedule O'Brien for reargument along with two cases challenging the draft that were denied review by the court the same day O'Brien was handed down,^[12] even though the parties in O'Brien had not presented arguments or briefs on that issue.

Vietnam War protests and developments in the draft

As the Vietnam War became more unpopular, the draft became more of a focal point for opposition and, despite O'Brien, public protests involving the burning of draft cards proliferated. Though the court has not revisited this specific issue, the court ruled for other anti-war protesters very soon after O'Brien in Tinker v. Des Moines Independent Community School District,^[13] which involved public school students who were suspended for wearing black armbands, and Cohen v. California, in which a man was convicted for disturbing the peace by wearing a jacket that read "Fuck the Draft" in a state courthouse.^[14]

Due in part to increasing domestic opposition, the United States reduced its involvement in Vietnam and completed withdrawal of its forces in 1973; the draft ended the same year. On January 21, 1977, the day after his inauguration, President Jimmy Carter signed Executive Order 11967, which granted a full pardon to anyone who had committed or been convicted of a non-violent violation of the Selective Service Act.^[15] This included everyone from draft dodgers to protestors such as O'Brien. The pardon covered all such acts committed between August 4, 1964, the date of the Gulf of Tonkin Incident, and March 28, 1973, the end of American withdrawal.

In 1980, however, Congress reinstated the requirement that young men register with the Selective Service System, but without reinstating an active draft. In 1984, the Supreme Court upheld the registration requirement against a claim that it violated the privilege against self-incrimination.^[16] The following year, it upheld the conviction of a man who refused to register despite his argument that this refusal constituted a political protest.^[17] As of 2022, male citizens (and many male noncitizen residents) between the ages of 18 and 25 are still required to register for preparation should a military draft be reinstated. The same provision in § 462(b)(3) of the act under which O'Brien was convicted remains law, though destroying draft cards is no longer a common form of protest and recent arrests for that offense are unknown.

Subsequent First Amendment decisions

For a few years following O'Brien, the decision was primarily cited to by the court for the proposition that an illicit legislative motive would not render a law unconstitutional.^[18] Finally, in 1972, the court relied in part on O'Brien to invalidate a law that prohibited picketing outside public schools that was not related to a labor dispute. Quoting O'Brien, the court held that the law "imposes a selective restriction on expressive conduct far 'greater than is essential to the furtherance of [a substantial governmental] interest'".^[19]

Two years later, the court declared in Spence v. Washington that the O'Brien test was "inapplicable" when the asserted government interest "directly related to expression in the context of activity".^[20] Spence ruled that a man who displayed an American flag with a peace symbol taped to it was engaging in protected expression; in 1989, the court similarly upheld the right to burn the American flag as expressive conduct in Texas v. Johnson.^[21]

The court revisited the necessary fit between the important governmental interest and the means to actualize that interest in Clark v. C.C.N.V., 468 U.S. 288 (1984), in which it held that the nexus need merely be reasonable. The court also merged its doctrine of time-place-manner restrictions and the O'Brien test into an intermediate scrutiny hybrid.