a. Harlan writes that the four-part O’Brien test, as he reads
it, does not preclude a legitimate First Am. challenge to a statute
“in those rare instances when an ‘incidental’ restriction upon
expression, imposed by a regulation which furthers an ‘important or
substantial’ government interest and satisfies the other O’Brien
criteria, in effect entirely prevents the speaker from reaching a
significant audience with whom he could not otherwise lawfully
communicate.” Harlan says this is not such a case since D could have
conveyed his message in many other ways, such as xeroxing his draft
card and burning it.
1. On a recent trip to CA., I saw a sign in Kinko’s informing me
that it was a federal violation to xerox draft cards. Would this
change Harlan’s holding in this case that D could have conveyed his
message in many other ways?
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