The Warren court, the period from 1953 to 1969 when Earl Warren served as the Chief Justice of the U.S. Supreme Court, is considered to be the most liberal Supreme Court so far. It made many important decisions during the civil rights era, such as abolishing racial segregation of schools in Brown v. Board of Education (1954). There was however a limit to the court’s liberalism, particularly in matters concerning the military.
In 1966, during the Vietnam War, David O’Brien burned his draft card in front of the South Boston courthouse in protest of the war. O’Brien was convicted because there was at the time a federal law that made it a crime to alter or destroy a draft card. He was sentenced to six years in prison. In 1968, the US Supreme Court upheld the federal law in United States v. O’Brien, a decision that established the O’Brien standard for constitutional scrutiny.
O’Brien argued in court that the federal law criminalizing the burning of draft cards was against the Constitution because his act in protest of the war was symbolic speech and protected by the First Amendment of the US Constitution which states, “Congress shall make no law [..] abridging the freedom of speech”. The opinion of the majority of the Supreme Court, written by Chief Justice Warren, plainly rejected the argument. Warren wrote that “[w]e 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”. This is surprising, since during the 60s the Supreme Court considered many other types of protest to be symbolic speech, for example sit-in demonstration in a white-only segregated library (Brown v. Louisiana, 1966), wearing a black armband at school in protest of the Vietnam War (Tinker v. Des Moines Independent Community School Dist, 1969) and nazis marching with swastikas (National Socialist Party of America v. Village of Skokie, 1977).
After refusing to recognize O’Brien’s act as speech, Warren nevertheless went on to analyze O’Brien’s argument, noting 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.’ So, according to Warren, the important thing is whether the law regulates the speech element or the nonspeech element of the act. In this case the court held that the purpose of the federal law was to ensure that the drafting of soldiers ran smoothly and not to curb protests. This is interesting as the words criminalizing the knowing destruction or mutilation of a draft card were amended to the law in 1965 after various draft card burning protests. Even Warren’s opinion notes that the reports of the Senate and House Armed Services Committees ‘make clear a concern with the “defiant” destruction of so-called “draft cards” and with “open” encouragement to others to destroy their cards.’
This led to the establishment of what became known as the O’Brien standard. According to the standard, a government regulation is “sufficiently justified” if: 1) “it furthers an important or substantial governmental interest”, 2) “the governmental interest is unrelated to the suppression of free expression” and 3) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”. The first criterion is simple, as Warren notes that “[t]he constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping”. The second and third criteria are more dodgy in this case, as the analysis makes it or breaks it with Warren’s insistence that the burning of a draft card is not a public protest and that the law forbidding the destruction of draft cards is all about the smooth operation of drafts and not at all about suppressing protests.
A similar question is at the heart of 303 Creative LLC v. Elenis (2023). Is making websites “pure speech”, as Gorsuch writes in the majority opinion, and is it within the web designer’s freedom of speech not to sell websites for gay marriages? Or is it commercial conduct, as Sotomayor writes in her dissent? In her view the Colorado anti-discrimination laws regulate only conduct and “any effect on the company’s speech is therefore incidental to the State’s content-neutral regulation of conduct.”
The distinction is important, because if making marriage websites is “pure speech”, any regulation on it is regulation on free speech and the standard of strict scrutiny is applied. Under strict scrutiny, the law is unconstitutional unless it is “narrowly tailored” to achieve a compelling state interest. As we have seen, for a combination of speech and conduct, the less strict O’Brien standard can be applied, if there is a governmental interest other than suppressing free speech. In this case, the conservative majority applied strict scrutiny and held that compelling web designers to create websites for gay marriages was unconstitutional.
It could have just as likely gone the other way. The court could have decided the creation of a website is a combination of speech and conduct elements and the O’Brien test is applicable. It is interesting that while the standards of scrutiny are fairly established, the court seems to be very free to decide what is speech and what is not. But clearly there is a difference between anti-discrimination and the military, where the government interest is “broad and sweeping”. As Gorsuch writes in 303 Creative, “[a] commitment to speech for only some messages and some persons is no commitment at all”.
Team 303 Non-creative