In a 7-1 decision, the United Supreme Court stated that symbolic speech must be regulated justly.
YesterdaySep 30 at 10:31pm
United States v. O’Brien 391 U.S. 367 (1968)
Facts
On March 31, 1966, David O’Brien and others burned Selective Service Draft Papers in front of a crowd in Boston’s Courthouse stairs. Many FBI agents were present in the crowd and took O’Brien to the Courthouse and gave him his rights. O’Brien had broken Title 50, App., United States Code, Section 462 (b) states that damaging Selective Service Draft Papers results in an arrest. O’Brien is aware of this law and still violated it to spread his disagreement about the war. Under the United States District Court for the District of Massachusetts, O’Brien was tried and charged. The Court of Appeals found the District of Massachusetts judgment unconstitutional as the 1965 amendment violated O’Brien’s first amendment rights. O’Brien states that the 1965 amendment was unconstitutional as the speech that he demonstrated was symbolic; symbolic speech is protected under the First Amendment. After certiorari was granted, the 1965 amendment was found to be constitutional.
Reasoning
In a 7-1 decision, the United Supreme Court stated that symbolic speech must be regulated justly. Governmental interest is required for first amendment rights to be restricted; in this case, there is governmental interest to identify who has participated in the draft. Selective Service Draft Papers are proof that a person has been drafted. Justice Douglas dissented by questioning the constitutionally of a draft when no war was present.
References
United States v. O’Brien 391 U.S. 367 (1968). (n.d.). Retrieved October 1, 2021, from https://scholar.google.com/scholar_case?case=12229836877065678192&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
YesterdaySep 30 at 4:44pm
Hello Professor and Classmates,
Clarence Brandenburg v. State of Ohio
395 U.S. 444 (1969)
Statement of Facts: Brandenburg, a leader of the Ku Klux Klan group held a rally where he invited an announcer reporter on the staff of a Cincinnati television station. The reporter brought his cameraman and recorded the rally, later on releasing portions of the film. Brandenburg made a speech at the rally that advocated violence. His speech included racial comments towards “niggers” and Jews.” He also said that “if our President, Our Congress, our Supreme Court continues to suppress the white, Caucasian race, it’s possible there might have to be some revengeance taken.” He even said that they had four hundred thousand members and that they were going to march on Congress on July the fourth. This speech violated Ohio’s Criminal Syndicalism Statute. According to the state of Ohio his speech promoted violence for social change. The state of Ohio fined him $1000 and sentenced him to one to ten years imprisonment. The case was brought up to the Supreme Court.
Issue: Is Brandenburg’s right to free speech protected by the first and fourteenth amendment even if it advocates violence?
Holding: Yes. The Supreme Court overruled the initial conviction given by the lower courts.
Reasoning: The Supreme Court ruled that the Ohio’s Criminal Syndicalism Statute violated Brandenburg’s right to free speech. Brandenburg advocated violence but he did not act or prepare to use violence. Brandenburg’s first and fourteenth amendment rights of free speech was protected. The Court established a test known as the Imminent Lawless Action Test. This test said that speech can be banned only if caused, was likely to, or stirred up violence.
Natasha Christopher
Reference:
Clarence BRANDENBURG, Appellant, v. State of OHIO,395 U.S. 444, 89 S.Ct. 1827 (1969) . Retrieved from Cornell Law School https://www.law.cornell.edu/supremecourt/text/395/444
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