a. No. Warren wrote the majority opinion. O’Brien contended that
the burning was “symbolic speech” protected by the First Amendment.
But the Court held that even if this were true, conduct combining
“speech” and “non-speech” elements (symbolic conduct) could be
regulated if four requirements were met:
(1) the regulation was within the constitutional power of the
government; (2) it furthered an “important or substantial
(3) that interest was “unrelated to the suppression of free
(4) the “incidental restriction” on First Amendment freedoms was “no
greater than is essential to the furtherance” of the governmental
interest. The O’Brien Court found that all of these requirements were
satisfied, and upheld the regulation.
1. According to Laurence Tribe, the requirement that the
governmental interest be “unrelated to the suppression of free
expression” is a somewhat clumsy and conclusory way of saying that if
the government is regulating the conduct without regard to the
message being communicated, it is content-neutral and the less
demanding O’Brien standard applies. If government is regulating
because of some harm associated with the speaker’s message, the law
is content-based, O’Brien does not apply, and the regulation is
subject to the “utmost scrutiny.”
b. The Court analyzed each of the four parts of the test to see
if the speech could be restricted.
(1) “the regulation was within the constitutional power of the
government: Congress clearly has a constitutional right to pass and
enact such laws.
(2) “it furthered an “important or substantial governmental
interest”: The draft law amendment furthered the substantial
government interest in “assuring the continuing availability of
issued Selective Service certificates.”
(3) “that interest was “unrelated to the suppression of free
Inquiries into congressional motives or purposes are a hazardous
manner…What motivates one legislator to make a speech about a statute
is not necessarily what motivates scores of others to enact it, and
the stakes are too high for us to eschew guesswork…[The few outspoken
Congressmen’s] concern stemmed from an apprehension that unrestrained
destruction of cards would disrupt the smooth function of the
Selective Service System.” Thus, the statute on its face is valid.
1. This is total bullshit. A strong case could be made the
Congress’ motive in enacting the ban on draft card destruction or
mutilation was to suppress public dissent. If so, the statute was
not content-neutral, and would have to be analyzed with the “utmost
(4) “the ‘incidental restriction’ on First Amendment freedoms was ‘no
greater than is essential to the furtherance’ of the governmental
The amendment effectively furthered the government’s interest. There
was no less restrictive way of accomplishing the objective of a
smooth functioning Selective Service System.
2. For instance, merely requiring each person to keep the card in
his possession, as the pre-1965 law did, would not be enough to
prohibit A from destroying B’s draft card.
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