September 6, 2011
United States v. O’Brien (1968)
Posted by David Clarkson under 3, Case Briefs | Tags: 1968, 1st Amendment, Draft, Selective Service Act, Vietnam War |[17] Comments
1. Facts of Case
The United States v. O’Brien case started in 1966 and was officially settled in 1968. David Paul O’Brien and three others were arrested on March 31st, 1966 by several FBI agents on the steps the South Boston Courthouse. Members of the large crowd that had gathered attacked the three men after O’Brien burned his draft card. The FBI agents who happened to be in the crowd made the arrest on the grounds of the 1965 Amendment to the Selective Service Act (1948) that prohibited desecrating and/or destroying draft cards. O’Brien openly admitted to burning his draft card and even allowed photos to be taken of its charred remains.
2. Legal Issue
O’Brien was not arrested for protesting the Vietnam War but for burning his draft card. Representing himself, O’Brien claimed his actions were to convince others to protest and that the 1965 Amendment to the the Selective Service act was unconstitutional because it violated the freedom of speech as defined in the First Amendment of the Constitution.
3. Decision
The United States v. O’Brien eventually reached the Supreme Court. The original decision in the District Court for the District of Massachusetts found him guilty of destroying his draft card and sentenced him to a maximum of six years of prison under the now nullified Youth Corrections Act. O’Brien was able to appeal to the First Circuit Court of Appeals who overturned the decision. They did so under the grounds that the 1965 Amendment violated O’Brien’s First Amendment rights. However, the Selective Service Act also requires all males from the age of 18 to 26 to register at their local draft office. Upon registration they are to receive their draft cards which they are legally required to carry on their persons at all times. The Appeals Court convicted O’Brien for not having his draft card since he obviously burned it and willingly allowed its charred remains to be photographed. Both the United States and O’Brien were unsatisfied with the verdict and appealed to the Supreme Court on two grounds. The United States did not want the 1965 Amendment to be declared unconstitutional and O’Brien wanted his new charges repealed since they were not what he was originally tried for. The Supreme Court reviewed both of the grievances as one case. They determined via an eight to one majority that the 1965 Amendment was in fact constitutional and that O’Brien was guilty of not having his draft card on his person. The lone dissenting justice did not disagree with the verdict but questioned whether a peace-time draft is constitutional.
4. Analysis
I believe the Supreme Court made its decision because it did not want radically shake the political atmosphere. If they found O’Brien not guilty and declared the 1965 Amendment unconstitutional it would encourage others to burn their draft cards which would seriously derail the government’s efforts to enlist soldiers in the Vietnam War. If they sided with the lone dissenting justice then the U.S. government would have to officially declare war in order to continue drafting soldiers for the Vietnam War. This could have untold ramifications abroad and would have almost definitely changed the course of world history.
5. Questions
- Is a peace time draft unconstitutional?
- Is the draft itself constitutional?
- How would young men (18-26) react if they still had to carry around draft cards?
17 thoughts on “United States v. O’Brien (1968)”
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September 7th, 2011 at 2:49 pm
Joining any military branch should be voluntary and should not be subjected to someone name/number getting called like in a lottery. Therefore I think that any sort or draft whether it is in considered peacetime should be unconstitutional. I think the fact that joining the military is voluntary makes the military stronger because it is made up of people who want to be there rather than people who are forced and don’t want to be there.
I do not think men today would like carrying a draft card around now. I think they would have constant anxiety that their card could be called at anytime and that they would have to put a hold on their life, families and career and be forced to join the military.
September 7th, 2011 at 8:09 pm
If I read this correctly, O’Brien was not convicted for burning his draft card. He was, instead, convicted for not having it on him. If that’s the case, then it’s legal to burn a draft card, but illegal to not carry it. On the surface, then, speech isn’t the real issue here. The speech is allowed. But the result of the speech breaks another law.
This might be similar, then, to free speech about nudity. A person can talk about nudity all he or she wants with no problems. The problem occurs, however, when this talk leads to the breaking of other laws. If free speech about nudity lead someone to run through town naked, he or she would be arrested on the grounds of public indecency. While closely tied to First Amendment issues, the way the speech was carried out violates other laws, like in the O’brien case.
This could lead some to question whether the government puts in place laws like the Selective Service Act to control ways in which free speech develops. The government couldn’t take away citizens’ right to speak out about involvement in Vietnam, but the SSA controlled how it could, or rather, could not, be done- by making burning draft cards illegal.
September 8th, 2011 at 8:24 pm
Interesting analogy!
September 8th, 2011 at 2:07 pm
I would agree with the court that he did break the law here. He does have his right to VOICE his opinion but, the burning of the card forfeited his speech. We have laws so standards are set. I feel burning his card was a drastic way of his speech and it went to a civil dispute once he committed that.
The draft was set for the protection of our nation to have accessible men to serve. If everyone burned their cards and he was able to get away with it, the draft would be pointless. It is important to obey the government and follow the laws accordingly. With the first amendment, we could have used it here in assembling peacefully in certain locations and even petitioned to the courts, government, or whoever that this something we do not want.
I feel this gentleman, O’Brien, acted on emotions rather than educated thoughts.
This case is important because it sets court standards that we can view from the past and compare to which was defined in our textbook. The constitution helps mentions, ” for the people and by the people.” We have the rights to influence the governments thoughts and to help the government tell us what we want. It is there job to set these standards. Our job is to exercise our rights and communicate what we can.
September 8th, 2011 at 4:43 pm
The decision of the court focused on the fact that O’Brien did not have his draft card on him because he burned it. I think that I would have to agree with this decision only because I feel that O’Brien was just trying to be a rebel and act out against “authority.” There are many other ways that he could have acted out such as starting a petition of some sort. He didn’t have to resort to burning his draft card and breaking the law just because he was upset that he was chosen.
I completely agree that the peace time draft is unconstitutional because the military thrives on being voluntary and to force someone to go into it is wrong. The whole idea of a draft is so unnecessary because there are plenty men and women who volunteer to provide services to the military but back then that might not have been the case. If the only way to protect the U.S. was to have a draft then it completely changes the situation.
I honestly feel that men today would hate to have carry around a draft card. The uncertainty of what that card could mean for them would kill them inside because anyday could be the day for them. I think that the government should take all volunteers before they start picking draft cards randomly forcing people who don’t want to be there to have to go. It would be hard for the men to have stability in their everyday lives knowing that maybe tomorrow they would have to leave.
September 8th, 2011 at 8:24 pm
Jane, here’s a question for you: was burning the draft card merely a symbolic act, or did it truly cause some problem? What’s the difference between burning a draft card and burning a flag?
September 8th, 2011 at 9:16 pm
I feel that joining the armed forces should be a decision that a person should make on their own accord, not a decision that government should mak for you. I for one would have a very diffcult time killing another human being, which is one very probable possibility. Any time the government is forcing something on an individual, I usually would tend to questions its consitutionality. I think if people have the cabalitiy to freely choose their own religion or set of beliefs, they should also have the right to decide if they want to support their government in war. The reason I say this is because even if you are a person who does not believe that you should kill another human being, there are stil positions in the military for you. You could be a code breaker or a cook or a doctor. However, in joining the army or navy or what have you, there is an element that you are supporting the governments interest. And in this country you should have the capability to not support governments interest. I think Vietnam is a good example because their was so much controversy around the government’s decision to go to war and act how it did in the inolvment in Vietnam.
The last question that you posed, I assume you meant pretaining to today? If so, I believe if young men were forced to carry draft card, there would be a great amount of uproar. Also, if it were today, would not women have to carry them as well. I think that is an interesting question considering the shattering of gender roles over the last 30 years in this country. That is something I have never thought about would their be a shift to include women now a days?
September 8th, 2011 at 9:41 pm
Good point about drafting women!
September 9th, 2011 at 12:40 am
Any sort of draft should be unconstitutional, whether during a time of peace of war. The United States was never supposed to have a long-standing career army to begin with. The country was only supposed to have voluntary state-controlled militias.
We (males) are required by law to register for the selective service. We don’t have to carry around draft cards anymore, but the government still has all of our numbers.
September 9th, 2011 at 9:14 am
Good point. Why don’t women have to register with Selective Service?
September 9th, 2011 at 1:54 am
Were the three other men burning their draft cards too or were they just part of the riot? Also, I agree with earlier posts that David Paul O’Brien should have acted in a more mature manner in order to show his disagreement with the government. However, it’s difficult say something like that now when the draft system is different now than it was back then. I imagine a lot of people felt the same way as O’Brien during this time period, such as the Black Panthers.
September 9th, 2011 at 2:50 am
I agree with those who commented before me; serving in the military should be something voluntary, not forced. People don’t execute jobs efficiently when they’re forced to do them. In a country that prides itself on freedom, forcing someone into doing anything must be questioned on its constitutional grounds. For me, this applies both in times of peace and in times of war.
I don’t think men would like having to carry a draft card with them at all times. Carrying around a card like that would be a constant reminder that their lives could potentially be uprooted at any given moment. It would, understandably, produce a lot of unnecessary anxiety.
One point I thought was interesting while analyzing this case is how much things have changed in the 40 or so years since it took place. The idea of carrying around a draft card sounds so primitive now in a digital age where everything can be tracked with computers. A case like this is obsolete and wouldn’t happen today. And like a previous commenter said, it is also very interesting to note that the entire case only applies to men, not women. It really emphasizes how much gender roles have changed since the 1960s.
September 9th, 2011 at 8:52 am
While I agree that a peacetime draft is unconstitutional, because it violates rights of people to decide if they want to fight in a war and support the government, here’s something to consider. Would the government have been able to get the neccesary involvement without the draft?
I also agree with Kelsey, that the result of the free speech is what affected other laws, so the real issue wasn’t free speech. The issue is that O’Brien burned his draft card- not that he wasn’t carrying it. Maybe it’s also possible that the government reacted so strongly because they didn’t want O’Brien’s actions to incite a political change and encourage others to not only burn their draft card, but decide to get rid of the card and not participate in the draft at all.
September 9th, 2011 at 9:14 am
Here’s a question: Did the government REALLY need the draft card, or was it an excuse to discourage anti-war demonstrations?
September 9th, 2011 at 9:25 am
I think the government in this case used wording and laws to their advantage. They knew they could not legally fault O’Brien for expressing himself, but instead on the ground that he did not carry his card with him since he burned it. When I first thought about it I thought they were being extreme in their assessment but at this time where there was so much political backlash the government felt it was necessary for the well being of the country to make people like him examples.This case is interesting to me because it has made people think about content neutral laws and even has a test named after it to decide whether laws like the ones in this case are constitutional. I personally believe that people should have a choice because if your heart is not in the cause or your not a fighter you might as well consider those soldiers dead.
September 9th, 2011 at 10:23 pm
i believe that O’Brien did break the law when it come to burning his draft card. Yes, the first amendment tells us we have the right to freedom of speech but the draft card is a way for the government to keep track of men, they need draft cards to ensure proper functioning the draft system. It is very importance that we follow the government. I also think that people should have the ability to chose rather or not they want to join the war. Personally, I know I would not be physically or mentally to be apart of a war so not everyone is fit to fight in a war.
September 11th, 2011 at 11:42 pm
I agree with you on both points and I think the case itself serves as a perfect backup for the argument. I agree that a law is a law and if the Government says we need to obey that law and hold onto our draft cards, then we need to hold onto our draft cards. I am all for standing up for beliefs and demonstrating against something you may feel is wrong, but common sense must come into play at some point. Laws are a lot more clear nowadays and I can honestly say that it would take the heat of the moment for someone to burn their draft card today. While O’Brien may have thought at first that he was being arrested for his demonstration, he was obviously arrested for breaking a previously established law and therefore, as much as I’d like to side with him, I can’t because he broke a law.