United States v. O’Brien (1968)
Background
Years and wars later another case comes to the Supreme Court to test Freedom and Speech and the Clear and Present Danger test. David O’Brien is a Boston University student protesting the Vietnam War and its draft. O’Brien is convicted for burning his draft card in March 31, 1966. (McGoldrick 2006, 903). O’Brien and three others were charged with violating the Universal Military Training Service Act, which prohibits the destruction of a draft card. O’Brien was found guilty and was sentenced to federal prison for a period of two to five years. Boston’s First Circuit Court of Appeals overturned the court conviction on the grounds that the law prohibiting the destruction of draft cards violated the First Amendment. O’Brien’s act was interpreted as symbolic speech. The appellate court, then, ruled that while O’Brien’s free speech rights should be upheld, he could
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O’Brien is a significant case because it presents two free speech issues. One, defining speech and action was an issue. What is symbolic speech? Here the Court redefines “the clear and present danger” theory, the Supreme Court established a stricter definition. The Court created a greater precedence with First Amendment limitations (IIT Chicago-Kent n.d.), whenever actions interfered with the right of government to carry out their responsibilities (McGoldrick 2006). Justice Warren wrote, “ We cannot accept the view that at an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea” (Fishman 2011, 136). This stance may have been politically motivated because of the changing tide of opposition to the war after the TET Offensive (Fishman 2011). So most of Warren’s explanation of his opinion had little to do with Frees Speech really. Much space in the opinion was devoted to the government’s actions or his enumeration of the draft card requirements to prove his
Tim O’Brien begins his journey as a young “politically naive” man and has recently graduated out of Macalester College in the United States of America. O’Brien’s plan for the future is steady, but this quickly changes as a call to an adventure ruins his expected path in life. In June of 1968, he receives a draft notice, sharing details about his eventual service in the Vietnam War. He is not against war, but this certain war seemed immoral and insignificant to Tim O’Brien. The “very facts were shrouded in uncertainty”, which indicates that the basis of the war isn’t well known and perceived
In the controversial court case, McCulloch v. Maryland, Chief Justice John Marshall’s verdict gave Congress the implied powers to carry out any laws they deemed to be “necessary and proper” to the state of the Union. In this 1819 court case, the state of Maryland tried to sue James McCulloch, a cashier at the Second Bank of the United States, for opening a branch in Baltimore. McCulloch refused to pay the tax and therefore the issue was brought before the courts; the decision would therefore change the way Americans viewed the Constitution to this day.
Her little boy wasn't expected to make it through the night, the voice on the line said (“Determined to be heard”). Joshua Deshaney had been hospitalized in a life threatening coma after being brutally beat up by his father, Randy Deshaney. Randy had a history of abuse to his son prior to this event and had been working with the Department of Social Services to keep custody over his son. The court case was filed by Joshua's mother, Melody Deshaney, who was suing the DSS employees on behalf of failing to protect her son from his father. To understand the Deshaney v. Winnebago County Court case and the Supreme courts ruling, it's important to analyze the background, the court's decision, and how this case has impacted our society.
Does the first amendment overrule the Texas law that forbids the desecration of a venerated object under these circumstances?
McCulloch v Maryland 4 Wheat. (17 U.S.) 316 (1819) Issue May Congress charter a bank even though it is not an expressly granted power? Holding Yes, Congress may charter a bank as an implied power under the “necessary and proper” clause. Rationale The Constitution was created to correct the weaknesses of the Articles. The word “expressly” particularly caused major problems and therefore was omitted from the Constitution, because if everything in the Constitution had to be expressly stated it would weaken the power of the Federal government.
Do you know that notifying your fellow Americans of their constitutional rights was a Federal crime? Well it was during World War One (WWI). In the case Schenck v. the United States, schenck tried to remind his fellow Americans of their constitutional rights and also let them know that the draft was being used as a form of militarized slavery. This case contained men who his right was taken away after he tried to get the military draftees to fight against the draft. However Congress took his right of speech away when it was arrested and convicted of violating the Espionage Act of 1917.
In the U.S. Supreme Court case of U.S. v Lopez (1995), a twelfth grade boy, Alfonzo Lopez, brought a loaded .38 caliber firearm to his local Texas high school. After being reported to the front office, Lopez was questioned about the gun and openly admitted that the firearm was in his possession. Texas then convicted Alfonzo of a criminal statute, which prohibited the carrying of a gun on school grounds. However, the charges were dropped rather quickly when the United States Government charged Lopez with violating the Gun-Free School Zones Act.
Tim O’Brien finds himself staring at his draft notice on June 17, 1968. He was confused and flustered. O’Brien does not know how or why he got selected for the draft. All he knew was that he was above the war itself, “A million things all at once—I was too good for this war. Too smart, too compassionate, to everything. It couldn’t happen” (41). He was also demented on the fact that he, a war hater, was being drafted. He felt if anyone were to be drafted it should be the people who supported the war. “If you support a war, if you think it’s worth the price, that’s fine, but you have to put your own precious fluids on the line” (42). His draft notice was when he first carried his thought of embarrassment. He instantly thought if he does not support the war he should not have to go to war. The only way not to go to war was to flee the country so the draft council could not find him. He had a moral split. “I feared the war, yes, but I also feared exile” (44). This quote is so true in young adults, not only then, but also now. Peer pressure, the thought of being embarrassed if we do not do something, pushes many young adults to do things they do not want to such as pushing Tim O’Brien to enter the draft. The thought of being judged ...
Justice Jackson's disagreement on the ruling of the Terminiello case is supported by many historical examples which demonstrate that freedom of speech is not an absolute right under the law. Although Terminiello had a right to exercise his right under the First Amendment, had the majority carefully considered this principle it should have rejected his claim. In this case, the majority's treatment of Terminiello's case skirted the real issue and did not benefit from true constitutional interpretation.
Clear and Danger was evaluated in the First Amendment and guarantees the right of Freedom of Speech. I have two scenarios regarding clear and danger, the first scenario is Debs v United States. In this case Debs v United States, Debs felt that socialism is the answer; however, Deb’s was prosecuted for the remarks that he made. In addition, the speech that Deb gave wasn’t as harsh as made by others, for example, George McGovern made a remark about the Viet Nam War during his 1972 presidential bid which was very harsh. This process was done by using its weak form of the clear-and-present-danger test and Deb’s ended up being sentenced to a ten year sentence. In this case Deb’s couldn’t speak everything on his mind that he wanted which was a violation
On August 7th 1964 the United States Congress passed into law the Gulf of Tonkin Resolution which, for all intents and purposes, officially brought the United States into the Vietnam War. Following this resolution, a draft was instated to increase the number of men that could be sent to war. Shortly after men started to be signed into conscription for the United States Military, a public outcry started over the use of a draft to increase military size. The draft was found to be unfair to American Citizens because certain groups of men were severely disadvantaged, the draft was illegal in many ways, and veteran’s future lives were harmed, among other reasons.
The facts presented in State v. Fischer would lead a rational trier of fact to have reasonable doubt that Fischer knowingly possessed methamphetamine. The majority concedes to the fact that the State did not offer any direct evidence to establish the “knowingly” element of possession of methamphetamine. The defendant’s knowledge was not determined on the basis of his exclusive ownership or exclusive access to the vehicle. The owner of the vehicle was never identified; the passenger of the vehicle was never identified. Fischer possessing marijuana on his person and refusing to submit to a urinalysis likely because of the marijuana in his system is not enough for any rational trier of fact to conclude beyond a reasonable doubt that he knew
The Tinker v. Des Moines case was a very important case in history. It changed a big part of school district rules. The Tinker’s were a family with two children who attended Des Moines Independent Community School District in the sixties. The Tinker’s had two kids, John F. Tinker and Mary Beth Tinker. One day the Tinker kids and Christopher Eckhardt, another Des Moines student, wore black armbands in a silent protest against the government’s policies in Vietnam during the Vietnam War. Both Tinker children and Christopher Eckhardt were suspended for their protest. When the Tinker and Eckhardt tried to fight the suspensions the District Court said it was within the school’s power to suspend the children but the parents knew that wasn’t right. So, the Tinkers and Eckhardts moved their case to the Supreme Court.
...o school. The dissenting opinion simply argued that freedom of speech is not to be used as a disturbance. Therefore, those students’ right to expression or speech was not violated because it interfered with the classroom’s learning. There is a time and place for everything, and freedom of speech should not be used everywhere.
Justice Oliver Wendell Holmes, Jr., delivered a judgment that established guidelines for evaluating the limits of free speech. In Schenck’s case, Court had to decide whether the First Amendment protected his words, even though it might have had the power to cause opposition to the draft. The First Amendment states that "Congress shall make no law...abridging the freedom of speech." The Court concluded that because Schenck's speech was intended to create opposition to the draft, he was not protected by the First Amendment.