“We don’t burn no draft cards down on Main Street …”

Each time I read about United States v. O’Brien, 391 U.S. 367 (1968), whether in my notes, outline or Constitutional Law book, the tune Okie from Muskogee starts playing in my head.

We don’t smoke marijuana in Muskogee;
We don’t take no trips on LSD
We don’t burn no draft cards down on Main Street;
We like livin’ right, and bein’ free.

more lyrics

I can blame the third line of the song. O’Brien upheld a Federal law banning any person from knowingly destroying or mutilating their draft cards. O’Brien, the person, burned his draft card on the steps of the South Boston Courthouse in March 1966 to protest the Vietnam war. The court held that the law banning draft card destruction was content-neutral. It then provided a rule that is still used to today to determine if content-neutral laws violate the First Amendment protection of speech.

Content-neutral government regulation is sufficiently justified if it:

  1. is within the constitutional power of the government;
  2. furthers an important or substantial governmental interest;
  3. if the government’s interest is unrelated to the suppression of free expression; and
  4. if the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.

I personally think O’Brien was a BS ruling because the Congressional history shows Congress passed the law in reaction to draft card burning, a form of political speech. Thus, the law was content-specific which would require a higher level of review. In which case, its goal would need to accomplish a compelling government interest and be narrowly tailored to have no less restrictive alternatives. Even under the less rigid test provided in the case, the regulation should fail because it was passed to suppress expression, namely draft card burning. The Supreme Court is made up of humans and is liable to make mistakes from time-to-time.

BTW: I hear the Grateful Dead (with the Beach Boys) version, rather than the original Merle Haggard song. The Grateful Dead/Beach Boys version comes from a live set played in April 1971 at Fillmore East. Give me a holler if you’d like a copy of the MP3 (free, of course). I love the Grateful Dead policy of allowing audience members to tape their shows and freely distribute. More bands should follow it to increase the scope of their audience.