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Freedom of Expression For burning his registration certificate, O’Brien faced criminal penalties. The United States
District Court for the District of Massachusetts indicted, tried, convicted, and sentenced
United States v. O’Brien O’Brien under Section 462. O’Brien argued to the jury that he had publicly burned his
registration certificate to “influence others to adopt his antiwar beliefs … so that other people
Case Summary and Outcome
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.” (at 370.) O’Brien further
The United States Supreme Court upheld a conviction for burning a military draft registration
argued that the law was unconstitutional “because it was enacted to abridge free speech, and
certificate on the steps of a courthouse. The Court found that the prohibition against
because it served no legitimate legislative purpose.” (at 370.)
destroying or mutilating draft registration certificates was narrowly tailored to further a
substantial governmental interest, and thus was a permissible restriction on expressive
The district court sentenced O’Brien “to the custody of the Attorney General for a maximum
conduct under the United States Constitution.
period of six years for supervision and treatment.” (at 369-70 n.2.) On appeal, the First Circuit
Court of Appeals held the card-destruction statute unconstitutional for abridging free speech in
violation of the First Amendment of the United States Constitution. There was also a secondary
Facts dispute concerning conviction under the regulation requiring personal possession of
registration certificates at all times. The U.S. government petitioned for certiorari, which the
David Paul O’Brien (O’Brien) and three other people burned their registration certificates for Supreme Court granted.
the Selective Service in front of the South Boston Courthouse on March 31, 1966. A sizable
crowd that witnessed the card-burning demonstration “began attacking O’Brien and his
companions.” (at 369.) O’Brien told an FBI agent that “he had burned his registration
Decision Overview
certificate because of his beliefs.” The United States was involved in the Vietnam War at the
time of O’Brien’s demonstration, and the burning of Selective Service registration certificates
Chief Justice Warren delivered the opinion of the United States Supreme Court. O’Brien argued
(or “draft cards”) was a common form of protest.
that the card-destruction statute was unconstitutional as applied to him as
restricting protected “symbolic speech,” and alternatively that the purpose or motivation of
The Selective Service is a United States government agency that registers and maintains
Congress’s prohibition on destroying cards was an unlawful suppression of speech.
information on people (mostly men) eligible for conscription into the armed forces, such as via
a military draft. Men are required to register with their local draft board upon reaching the age
First, the Court considered whether the card-destruction statute was an unconstitutional
of 18. Two important documents related to the administration of the Selective Service are the
restriction on symbolic speech. On its face, the statute does not restrict speech itself. The
registration certificate and the classification certificate. The registration certificate is issued
statute bans forging, altering, destroying, and mutilating Selective Service registration
soon upon registration, and contains the individual’s Selective Service identification number.
certificates, making no mention of any manner of speaking. Enforcement of the statute is also
The classification certificate denotes eligibility for conscription or the draft. Both certificates
unaffected by any potentially expressive content in the destruction of registration cards; it is
have information important to the administration and management of the Selective Service.
applied indiscriminately. O’Brien argued that symbolic speech, the “communication of ideas by
conduct,” is protected, and that he was communicating his objections to the military draft by
Section 462 of the Universal Military Training and Service Act of 1948 made it illegal to forge,
his public burning of his registration certificate.
alter, or change Selective Service registration certificates. In 1965, Congress amended this
section to further forbid knowingly destroying or mutilating registration certificates (“Section
Although the Court conceded that symbolic speech is protected to an extent, it could not
462” or the “card-destruction statute”). There was also a regulation subject to criminal felony
“accept the view that an apparently limitless variety of conduct can be labeled ‘speech’
penalties which required Selective Service registrants to have both certificates “in their
whenever the person engaging in the conduct intends thereby to express an idea.” (at
personal possession at all times.”
376.) Supreme Court jurisprudence demonstrated that “that when ‘speech’ and ‘nonspeech’

elements are combined in the same course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms.” (at 376.) Although the Court’s characterization of the interest the
government must demonstrate has varied from “compelling,” to “substantial,” “paramount,”
and “cogent,” the Court found “it clear that a government regulation is sufficiently justified if:
1. It is within the constitutional power of the Government;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression; and
4. The incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” (at 376-77.)
According to the Court, the creation of Selective Service was clearly within Congress’s power to
raise and support armies, which it found “broad and sweeping.” (at 377.) Further, the second
factor was met because the “issuance of certificates indicating the registration and eligibility
classification of individuals is a legitimate and substantial administrative aid in the functioning
of this [registration] system. And legislation to insure the continuing availability of issued
certificates serves a legitimate and substantial purpose in the system’s administration.” (at
377-78.) Summarily, the Court characterized the government’s interest as “substantial.” (at
381.)
To satisfy the third requirement, the government’s interest in the smooth functioning of the
Selective Service had nothing to do with suppressing speech. Again, the enforcement of the
card-destruction statute was not inherently related to speech, but strictly related to non-
communicative conduct. Finally, the law was sufficiently narrowly drawn to preserve the
availability and integrity of the certificates maintaining the Selective Service system. The
destruction or mutilation of certificates would frustrate or defeat the purpose of the
registration system implemented by the Selective Service. Furthermore, requirements that
registrants have the certificates in their possession at all times were insufficient to preserve
these important documents: “the essential elements of nonpossession are not identical with
those of mutilation or destruction,” “they protect overlapping but not identical governmental
interests, and … they reach somewhat different classes of wrongdoers.” (at 380-81.)
Basically, the ban on conduct regulated by the card-destruction statute was necessary to
ensure a smooth functioning of the registration system. In conclusion, the law was an
appropriately narrow tool to protect the government’s sufficient and “substantial interest in
assuring the continuing availability of issued Selective Service certificates.” Because it met all
four requirements, the law was a permissible regulation on symbolic speech and did not overly
burden O’Brien’s expressive conduct.
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O’Brien’s second argument was that the card-destruction statute was unconstitutional because
the purpose was to suppress the freedom of speech. However, the Court held that it is “a
familiar principle of constitutional law that [the U.S. Supreme] Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit legislative motive.” (at 383.)
The courts may look to legislative history and intent when interpretation of the law is at issue.
But in O’Brien’s case, the interpretation of the card-destruction statute was straight-forward.
For this reason, the purpose of the 1965 amendment was irrelevant, though the Court
indicated there was scant evidence supporting O’Brien’s argument that the motivation of the
statute was to suppress speech.
Because the card-destruction statute met all four requirements for laws that indirectly impact
symbolic speech, and because the motivation for the statute is largely irrelevant under U.S.
principles of judicial review, the Court upheld O’Brien’s conviction. The Court vacated the
judgment of the Court of Appeals, and reinstated the district court’s conviction of O’Brien
under the card-destruction statute. Because of its ruling, the Court did not consider the
secondary argument regarding the possession regulation.
Justice Marshall took no part in the consideration of the case.
Justice Harlan wrote a concurring opinion to clarify that the four-prong O’Brien test does not
prevent review in cases in which a speaker is effectively prevented from reaching a significant
audience.
Justice Douglas wrote a dissenting opinion. He did not dispute the validity of the O’Brien test,
or most of the Court’s application of that test. Justice Douglas primarily argued that the Court
should request reargument from the government and O’Brien to discuss the constitutionality
of a peacetime draft when there has been no declaration of war from Congress (as there had
not been in the ongoing Vietnam War). The Court’s decision on that issue would impact the
breadth of Congress’s powers to raise and support armies, and thus the Court’s interpretation
of the first prong of the O’Brien test.
Schenck v. United States Case Brief
Relevant Facts: Schenck mailed circulars to Army draftees during the First World War. The
circulars were essentially meant to persuade the draftees to view the war as a moralyl wrong,
instigated by the leaders of a global capitalist system. The circulars were alleged to have been
incendiary because they compelled draftees to “not submit to intimidation" by acting
peacefully outside of the war rather than in the war, and by petitioning to end/repeal the
Conscription Act that made drafting legally permissible. Schenck was consequently charged
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with conspiracy to violate the Espionage Act on the grounds that he actively attempted to In 1915, 34 Pampanga residents signed a petition to the Executive Secretary regarding charges
compel draftees to be insubordinate, particularly during wartime, and as a result also against Roman Punsalan, the justice of the peace of Macabebe. They wanted to oust him from
attempted to obstruct the military from recruiting necessary personnel for the First World his office.
War.
Specific allegations against him included bribery charges, involuntary servitude, and theft.
Issues: The legal question presented was whether Schenck’s actions, i.e. his words and overall
expression, was protected by the free speech clause of the First Amendment or whether it was The justice denied the charges. In the CFI, not all the charges were proved. But, the judge still
not protected, with the implicit argument being that there are different First Amendment rules found him guilty.
to be observed during wartime.
Punsalan filed charges alleging that he was the victim of prosecution and one Jaime, an
Holding: The Supreme Court unanimously ruled that Schenck’s words and his expressions in auxiliary justice, instigated the charges against him for personal reasons. He was acquitted.
this case were not protected, and thus his 1stAmendment rights to freedom of speech and
The complainants filed an appeal to the Governor General but it wasn’t acted upon.
expression had not been violated.
Criminal action was instituted aganst the residents by Punsalan.
Majority Opinion: Associate Justice Holmes wrote the Court’s opinion, which reasoned that
Schenck was not protected because the circumstances (wartime) were so severe and critical to
The CFI found almost all of the 34 defendants guilty and sentenced them to pay 10 pesos or
the state of the country that his words effectively presented a “clear and present danger" to
suffer imprisonment in case of insolvency.
the war effort, something that the U.S. Congress had the authority and onus to prevent. The
Court thus concluded that typical peacetime actions and expressions that would be fine when The defendants filed a motion for a retrial to retire the objection made by Punsalan. The trial
there is no war or conflict must to some degree(s) be scaled back during wartime. court denied the motion. All except 2 of the defendants appealed. Making assignments of
error.
Conclusion: This case was important because it provided a distinction (one of several
ultimately made by the U.S. Supreme Court) that freedom of speech and expression is not an 1. The court erred in overruling motion for retrial.
absolute right; there are parameters and limitations to what individuals can express. In this
case, speech that works to subject the country to a “clear and present danger" is not permitted 2. Error in not holding that the libelous statement was not privileged
by the Constitution, with the implicit argument being that Schenck’s expression in particular
was anathema to national security and therefore problematic for a country trying to protect its 3. Error in not acquitting defendants
Constitution by presenting an effective war effort founded upon sufficient troop levels.
4. Evidence failed to show gult of defendants beyond reasonable doubt.

U.S. v Bustos G.R. No. L-12592 March 8, 1918 5. Erred in making defendants prove that the libelous statements were true.

J. Malcolm 6. Error in sustaining the prosecution’s objection to the introduction in evidence by the
accused of the affidavits upon which the petition forming the basis of the libelous charge was
based.
Facts:
7. Erred in refusing to permit the defendants to retire the objection in advertently interposed
by their counsel to the admission in evidence of the expediente administrativo out of which
the accusation in this case arose.

Issue:
Whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice
of the peace in Pampanga.
Held: Yes. Defendants acquitted.
Ratio:
Freedom of speech was non existent in the country before 1900. There were small efforts at
reform made by the La Solidaridad. The Malolos Constitution, on the other hand, guaranteed
freedom of speech.
During the U.S. period, President McKinley himself laid down the tenet Magna Charta of
Philippine Liberty when he wrote, “that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for a redress of grievances." This was in the Philippine Bill.
In the Amrican cases it was held, there were references to “public opinion should be the
constant source of liberty and democracy.” It also said “the guaranties of a free speech and a
free press include the right to criticize judicial conduct. The administration of the law is a
matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the peace or a judge the
same as any other public officer, public opinion will be effectively muzzled. Attempted
terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort.”
“It is a duty which every one owes to society or to the State to assist in the investigation of any
alleged misconduct. It is further the duty of all who know of any official dereliction on the part
of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those
whose duty it is to inquire into and punish them.”
The right to assemble and petition is the necessary consequence of republican institutions and
the complement of the part of free speech. Assembly means a right on the part of citizens to
meet peaceably for consultation in respect to public affairs. Petition means that any person or
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group of persons can apply, without fear of penalty, to the appropriate branch or office of the
government for a redress of grievances. The persons assembling and petitioning must, of
course, assume responsibility for the charges made.
Public policy has demanded protection for public opinion. The doctrine of privilege has been
the result of this. Privilged communications may in some instances afford an immunity to the
slanderer. Public policy is the “unfettered administration of justice.”
Privilege is either absolute or qualified. Qualified privilege is prima facie which may be lost by
proof of malice. This is apparent in complaints made in good faith against a public official’s
conduct having a duty in the matter. Even if the statements were found to be false, the
protection of privilege may cover the individual given that it was in good faith. There must be a
sense of duty and not a self-seeking motive.
A communication made bona fide upon any subject-matter in which the party communicating
has an interest, or in reference to which has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable.
In the usual case malice can be presumed from defamatory words. Privilege destroys that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring
home to the defendant the existence of malice as the true motive of his conduct. Falsehood
and the absence of probable cause will amount to proof of malice.
It is true that the particular words set out in the information, if said of a private person, might
well be considered libelous per se. The charges might also under certain conceivable conditions
convict one of a libel of a government official. As a general rule words imputing to a judge or a
justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his
office are actionable. But as suggested in the beginning we do not have present a simple case
of direct and vicious accusations published in the press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly privileged. Express malice has not been proved
by the prosecution. Further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office existed is apparent.
The ends and the motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the privilege. These
respectable citizens did not eagerly seize on a frivolous matter but on instances which not only
seemed to them of a grave character, but which were sufficient in an investigation by a judge
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of first instance to convince him of their seriousness. No undue publicity was given to the
petition. The manner of commenting on the conduct of the justice of the peace was proper.