1968 May 27

First Amendment Does Not Protect Burning Draft Card

 

In the case of O’Brien v United States, the Supreme Court on this day ruled that burning a draft card as a form of protest was not protected by the First Amendment. Surprisingly, the majority opinion was written by Chief Justice Earl Warren, who was normally a strong defender of freedom of speech and other civil liberties. The first Vietnam War-era draft card burning occurred on October 15, 1965. The law making draft card burning a crime was signed into law by President Lyndon Johnson on August 30, 1965.

In addition to this case, the Vietnam War created a number of civil liberties crises. They include (1) the lack of a Congressional Declaration of War as required by the Constitution (June 3, 1970); (2) threats to freedom of the press in the Pentagon Papers case (June 30, 1971); (3) spying on the anti-war movement by the CIA (August 15, 1967); (4) threats to freedom of expression, for example high school student protests (February 24, 1969); censorship of television programs (February 25, 1968); and directly and indirectly some of the events that led to the Watergate Scandal (May 9, 1969; January 27, 1972).

Chief Justice Warren: “We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.”

Watch a Vietnam War-era draft card burning: http://www.youtube.com/watch?v=gV–rAMQoQk

Learn more about the anti-Vietnam War movement: Thomas Powers, The War at Home: Vietnam and the American People, 1964–1968 (1973)

Read first-hand accounts of 1960s-1970s radicals: Clara Bingham, Witness to the Revolution: Radicals, Resisters, Vets, Hippies, and the Year America Lost its Mind and Found its Soul (2016)

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