Facts of the Case
David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime.
Was the law an unconstitutional infringement of O'Brien's freedom of speech?
No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."
Why Proportional Representation Will Not Stem Redistricting Litigation But Will Undermine Normative Representative Values
Federalist Society Review, Volume 21
Note from the Editor: The Federalist Society takes no positions on particular legal and public...