United States v. O'Brien

War, huh, yeah. What is it good for? Curtailing the First Amendment!

A podcast where we dissect and analyze the Supreme Court cases that have left our liberties ailing, like me sickly cohosts

0:00:00.0 S?: Number 232 and 233, United States, petitioner versus David Paul O'Brien and David Paul O'Brien, petitioner versus United States.

0:00:17.8 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, the hosts are talking about United States v. O'Brien. The events of this case took place against the backdrop of resistance to the US' escalating involvement in the Vietnam War.

0:00:34.8 S?: Seven young and earnest protesters burned draft cards on the steps of a Boston courthouse.

0:00:39.4 Leon: The respondent in the case, David O'Brien, was arrested after admitting to burning his draft card, an act of protest that had been made illegal in a federal law passed the year before. O'Brien argued that the law violated his First Amendment rights. The Court disagreed. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:04.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our liberties ailing like my sickly co-hosts. [laughter] I am here with Michael.

0:01:15.7 Michael: Hey, everybody.

0:01:16.5 Peter: Michael, recovering from a bout of something or other.

0:01:19.8 Michael: A stomach bug, very unpleasant stomach bug.

0:01:22.5 Peter: And Rhiannon taking the week off due to a string of symptoms that defy my understanding of science. [laughter]

0:01:34.8 Michael: She's like going deaf and blind from a head cold or something. It makes no sense.

0:01:40.4 Peter: Yeah. It started off like, "I have a cold," and then she's like, "It's an infection and it's spreading to my eyes." And then she said she had hearing loss and I was just like, "Ooh. Like, good luck," you know?

0:01:51.4 Michael: Yeah. Yeah.

0:01:52.7 Peter: RIP to a real one. [laughter] To our co-host Rhiannon.

0:01:56.3 Michael: We're on one out.

0:01:57.5 Peter: Now she's doing better.

0:01:58.3 Michael: Yeah. She's on the mend.

0:02:00.0 Peter: Not quite our podcast ready yet.

0:02:01.4 Michael: No.

0:02:01.6 Peter: And and maybe it's for the best, because this is a First Amendment case.

0:02:06.7 Michael: Which she hates.

0:02:07.6 Peter: Yeah. This week's case, United States V O'Brien, a case from 1968 about free speech. In the 1950s and 1960s, the United States took a notably active role in the war between North and South Vietnam. In 1965, American troops were officially put on the ground. This was met with widespread protest, as you may know, especially because at the time there was an active draft, meaning that nearly any young male could be called into military service and sent to fight. And during those protests, young men would often burn their draft cards, which they were required to keep as documentation of their registration for the draft. So a few months later, Congress outlawed the destruction of draft cards.

0:03:03.8 Michael: Interesting timing.

0:03:05.8 Peter: Yeah. Our boy David O'Brien and several of his associates publicly burned their draft cards in protest at the war, and they were arrested. O'Brien argued that the arrest was unconstitutional because freedom of speech, things of that nature. But the Supreme Court in a 7-1 decision says no dice, and they uphold the conviction. So in the absence of Rhiannon...

0:03:35.9 Michael: There's no background today. [laughter] Rhiannon's not here, so we're just gonna do this context-free, baby. No, I'll take it away, Peter.

0:03:46.9 Peter: Alright.

0:03:48.7 Michael: The background on this one is actually pretty simple. The big things to know are that in the late '40s, the United States instituted the Selective Service Act, which required all men of the age of majority, age 18, to register for the draft. It was a peacetime draft, and it's still in force today. I remember having to do this when I turned 18. I was like, "That's fucking weird." And part of that Act was that you had to keep your draft card on you at all times. A little anachronistic now, but this was right after World War II and the Korean War was right on the horizon, and kind of a different time in American history, not as technologically advanced as we are today with our phones and our internet and all that.

0:04:38.0 Peter: Sure.

0:04:38.6 Michael: So that's sort of the legal status. The cultural status at the time of this case was one of upheaval, of unrest. Like Peter mentioned, there were protests, there were riots. This is like at the tail end of the Civil Rights movement. The sexual revolution. A big culture war between the hippies and conservatives with military buzz cuts. There's a guy in a tie-dyed shirt who smelled like incense spitting on a guy who looked like he was a veteran at every corner of every major city in the country. That's what the '60s was like, folks, I was there, trust me.

0:05:21.6 Peter: Yeah.

0:05:22.1 Michael: But it was a time of massive civil unrest, big social change. And I do think the left felt, maybe not ascendant, but they'd had some real victories, right? Women's rights, minority rights.

0:05:36.3 Peter: Yeah, the Civil Rights Act gets passed in 1964, and this is one year later that all this is going on.

0:05:41.7 Michael: Right, exactly. And they didn't like the war in Vietnam and I think rightfully so. People set out to stop it, right, in a massive protest movement. This sparked a lot of backlash. And in the middle of that backlash was David O'Brien, who was a young man, goes to a protest on the steps of a courthouse in Boston, and he and a few friends at the protest burn their draft cards. Now, lo and behold, there are several FBI agents in the crowd at the time, which I think is a pretty good illustration of just what the country was like then, that the FBI was just sending agents out to monitor protests.

0:06:24.9 Peter: Right, and also a good illustration of what exactly the dynamic is in this case, right?

0:06:32.2 Michael: Oh, absolutely. And after they burn the draft cards, the agents grab O'Brien, they bring him inside the courthouse. Supposedly they didn't know what he'd burned was his draft card, or at least maybe they suspected it, but hadn't confirmed it. But he held up the charred remains and was like, "Yeah, I fucking did it, man. I burned my draft card. What are you gonna do about it?" And they arrested him. They booked him right there on the spot. He defends himself in court. He argues the law is unconstitutional. He's convicted. He appeals and wins at the Circuit Court of Appeals and the federal government in turn appeals that to the Supreme Court, which is how we get this case, United States v. O'Brien.

0:07:13.5 Peter: Right. So let's talk about the law here. He's convicted of violating this law that is passed in 1965, right after the protests start, that says you can't destroy your draft card. And he's saying that that's unconstitutional, either in general or applied to him. And one of the key questions here is how we should be analyzing the constitutionality of laws that don't on their face restrict free speech, but might in some circumstances function to restrict free speech. In other words, destroying a draft card isn't necessarily an expressive act intended to make a point.

0:07:56.9 Michael: You leave it in your pants pocket when you put it in the laundry.

0:08:00.8 Peter: Whatever, you could just be annoyed and rip it up or whatever. You can rip it up in the privacy of your home, right? You're not making a point, you're just destroying it. So how should we be treating laws that restrict those types of actions? O'Brien makes two primary arguments. First he says, even though the law doesn't say so expressly, the purpose of it was to suppress speech, right? That's why it was passed, and that should be unconstitutional. Second, even if you ignore the purpose of the law, O'Brien was in this specific case trying to express himself, so the law as applied to him is unconstitutional. The Court's opinion revolves around the fact that this only incidentally impacts speech, right? Meaning, like I said, it's not targeting speech or expression outright. It's just targeting conduct that might sometimes be expressive, might sometimes be speech. And the Court says that laws like that should be subject to less scrutiny by courts.

0:09:09.8 Michael: Right. By less scrutiny, he means like less than a law that explicitly targets speech, right, but which is going to get like the highest form of scrutiny, the toughest test. This gets like a middle test, a more sort of 50-50 could go either way test. My First Amendment prof was like, "Strict scrutiny means that the law gets struck down 90% of the time. Intermediate scrutiny means it gets struck down 50% of the time. And rational basis basis means it gets upheld 90% of the time. That's it. That's all you need to know." He was like, "All the other shit's mumbo jumbo. It doesn't even matter. You just need to know the numbers. That's it."

0:09:45.1 Peter: Right. So the Court creates a test for evaluating cases like this. Four parts to it, but the key component is that the law must further an important government interest. And that interest cannot be the suppression of free speech. So note that the rule they're creating here isn't saying that you can't have a law inhibiting free speech or expression. What it's saying is that you can have a law that inhibits free speech as long as the law is doing something else that's legitimate, right?

0:10:21.0 Michael: Right.

0:10:22.4 Peter: So they say yes, this law is in fact inhibiting O'Brien's free speech. Sure. But it also helps with the smooth administration of the draft, which is a legitimate government interest. And so it's constitutional.

0:10:40.8 Michael: More than legitimate. It's an important one.

0:10:42.2 Peter: An important...

0:10:44.0 Michael: An important one.

0:10:44.1 Peter: Government interest. So couple of concerns here. First, the Court has created a rule where you can have laws that are designed to suppress free speech and in function do suppress free speech as long as they accomplish something else important too, right? Which seems like a pretty big loophole, I guess. Like if you shot someone and then you were like, "Oh, I was aiming at the guy behind you," and the Court's like, "That's okay."


0:11:21.5 Peter: It feels like "oops, it was an accident, I was trying to do something else" should not be a particularly compelling excuse for violating constitutional rights, I guess.


0:11:31.6 Michael: Yeah, I agree with you. I'm not even a big free speech guy, but for me this like has never flown, like it doesn't jive for me at all. I don't know, I feel like political expression is like the core of free speech, right? And what is burning your draft card if not like provocative political expression, which is why they wanted to outlaw it, right? Like, this shouldn't be a hard case to me.

0:11:56.4 Peter: Right. And the other concern here is that the claim that this law is so important to the smooth functioning of the draft system, that it should override the freedom of expression of people who want to protest the draft feels pretty thin, right? Like keep in mind, the only tangible purpose that the cards serve is to signify that you've been registered for the draft. They're also a reminder to the holder of the card to notify your local draft board of address changes, like that's the primary use of the cards, right?

0:12:32.1 Michael: Bro, if you have a card to destroy, that means you registered for the draft.

0:12:37.0 Peter: Right. You're already registered for the draft, right? So like is it really an important government interest that overrides free speech to make sure that this guy has a little card saying that he registered. It's basically symbolic paperwork, right?

0:12:52.8 Michael: Yeah.

0:12:53.3 Peter: And one thing to keep in mind here is that it's already illegal to evade the draft, like you can already get prosecuted for evading the draft with or without this law. So penalties for burning your little registration card or whatever are at best superfluous, right? But the Court is acting like this is some very important government goal. Like, just bullshit, I... That's it. It's just bullshit. And like the fact that we had the draft system for 17 years before Congress threw this little requirement on and like we fought a full-ass war in Korea, right, without this requirement seems to indicate that the draft system functions perfectly well without it.

0:13:46.2 Peter: But who am I but a simple lawyer, you know. So the elephant in the room here looking past even the like functional logistics is that everyone knows that the actual purpose of this law is just to punish war protesters for their views, right? Every lawyer involved in this case knows that, every justice of the Supreme Court knows that. So why should it even matter that there's some theoretical legitimate purpose for the law when the actual real-life purpose is literally to suppress speech, right?

0:14:22.1 Peter: And that's what O'Brien's primary argument is. He's saying that the law is unconstitutional because the actual purpose is to suppress his free speech. The Court rejects that argument. They say, quote: "The purpose of Congress as O'Brien uses that term is not a basis for declaring this legislation unconstitutional." They add that, quote: "Inquiries into congressional motives or purposes are a hazardous matter."

0:14:54.3 Peter: Which is interesting because, like we were just discussing, they spent most of the opinion upholding the law because they felt it served the important purpose of helping the draft function smoothly. And now in the same breath, they're saying that they don't actually analyze the purpose of the law.

0:15:14.3 Michael: Peter, they only analyze abstract hypothetical purposes. [laughter]

0:15:19.0 Peter: Right, right.

0:15:19.7 Michael: Actual purposes, that's... Now you're peering into the minds of senators. That's way too much. We only deal in the fakeness of the law here, not the reality of the lawmakers.

0:15:33.8 Peter: Right. So to be fair to the Court, which we always are, I think that what they're getting at is that it can be very difficult to figure out what the true intent behind a law is, right? We just don't know. We just talked about this in our Palmer v. Thompson episode about closing desegregated pools, where they were like, who knows why city officials in Jackson, Mississippi closed these desegregated pools. It's hard for courts to know the true intent of legislators. And that's true. Only the closest, most thorough investigations could ever reveal the true intent here of Congress. So thankfully, Michael.

0:16:19.3 Michael: Yeah.

0:16:20.6 Peter: You're a top-notch investigator, I'm told.

0:16:21.9 Michael: That's right.

0:16:22.0 Peter: And you did a little bit of research.

0:16:25.4 Michael: I did.

0:16:25.5 Peter: On the legislators' intent.

0:16:25.5 Michael: I did. We're very lucky, because it turns out there's this thing called the Congressional Record, where things the legislators say gets recorded. It's pretty cool. So we have Senator, I believe it's Strom Thurmond here, speaking about the bill, and he says: "Mr. President, recently the public and officials of our country have been appalled by reports of mass public burnings of draft registration cards. It is not fitting for our country to permit such conduct while our people are giving their lives in combat with the enemy."

0:17:02.3 Peter: Huh. That's weird. So he didn't mention the smooth functioning of the draft?

0:17:06.0 Michael: No, he didn't, he didn't. I also want to talk about Representative Rivers of South Carolina, who says: "The purpose of this bill is clear." He explains what it does. And then says: "It is a straightforward, clear answer to those who would make a mockery of our efforts in South Vietnam by engaging in the mass destruction of draft cards."

0:17:31.8 Peter: Wow. What am I, a mind reader, you know? How am I supposed to know what this man is thinking?

0:17:37.8 Michael: It's a mystery. There was another Representative who then responded saying, "Wow, you know, that was so persuasive. I am ready and willing and able to withdraw my reservation about the bill." So he was persuading people by telling them, we got to support our troops in Vietnam by locking up the hippies, burning the draft cards.

0:18:00.7 Peter: Right.

0:18:00.8 Michael: The last Representative, Mr. Bray, said: "The need of this legislation is clear. Beatniks and so-called quote unquote campus cults have been publicly burning their draft cards to demonstrate their contempt for the United States and our resistance to communist takeovers. Such actions have been suggested and led by college professors, professors supported by taxpayers' money." This is some serious shit. So, yeah, I think Congress was pretty clear about what they were doing here.

0:18:36.2 Peter: It's so fucking good, man, that the Court is like, "Look, what are we, how are we supposed to figure this stuff out?" And meanwhile, congressmen are like, "The purpose is this, we are suppressing the speech of college students whom we hate."

0:18:52.1 Michael: Right. [laughter] It's unbelievable like how explicit they are. And then the majority is like, "Look, we are not going to pay any attention to statements from legislators describing why they're passing this bill. That's nonsense. We think it's far more interesting to look at the committees on armed services of the Senate and House where they explain the Amendment," and they attach this as an appendix to the opinion, is portions of this report. And even in the thing that they cite, the committee, and I quote: "The committee has taken notice of defiant destruction and mutilation of draft cards by dissident persons who disapprove of national policy." [laughter] Like what the fuck are we doing here?

0:19:42.4 Peter: So you have the statements of the Congresspeople. You have the records from the committee. There is literally no evidence that this was actually intended to facilitate the smooth functioning of the draft. And yet that is like a given to the Court. They're like, "Of course." And not only that, but they're saying that that outweighs the free speech of O'Brien here. And then the fact that literally at every nodal point of policymaking, someone was like, "We're going to suppress these fucking hippies' free speech."

0:20:21.7 Michael: Fuck them kids. [laughter]

0:20:22.9 Peter: That's irrelevant to the Court here. They're just like, "What are we supposed to do with this?" You know? Like, "God damn it."

0:20:30.1 Michael: Unbelievable.

0:20:31.5 Peter: And what goes completely undiscussed in this opinion is like, why were they arrested? Were those FBI agents out just doing general draft smoothening? Is that what they were doing? They were on the facilitating the smooth functioning of the draft beat? No, they were out to fucking crack hippie skulls, dude.

0:20:56.3 Michael: Yeah. They were trying to silence dissent. They were trying to quell protests. They wanted people to see their friends in cuffs so that they would be less likely to agitate. All this was stifling dissent.

0:21:13.1 Peter: I mean, if you asked those FBI agents what they were doing out there, I guarantee you, guarantee you, they're like, "We're fucking these hippies up, bro." [laughter]

0:21:23.9 Michael: Yeah, absolutely. Yeah. Absolutely. Oh, man.

0:21:28.7 Peter: Okay, let's take a break and then we'll come back. And we are back.

0:21:35.1 Michael: So Justice Harlan writes a concurrence. It's not super notable, except like his thing is kind of like a respectability politics almost, where he's like, "Look, these young men, they have a right to protest, but I just don't agree with the way they went about it." And this actually becomes part of First Amendment law and becomes part of the O'Brien test eventually is this idea that there needs to be alternate channels for expression. So even if something otherwise passes the O'Brien test, if it's closing off the only channel for expression, then the Court will strike it down as unconstitutional. That's not very common. So Douglas, who's a total king...

0:22:24.1 Peter: My boy.

0:22:24.6 Michael: Has a great dissent, the lone dissent, where he's like, "Look, we haven't even declared war. Like what are we... [laughter] What are we talking about here? Like maybe if we had a formal declaration of war, we could be talking about the smooth administration of the draft and all that stuff. But like last I checked formally, we are at peace. So who are we kidding here?" A very trollish dissent, but a good one.

0:22:48.8 Peter: Yeah. And it's interesting, because the facts of this case occur in 1965, but the case itself drops in late May 1968. Relevant for a bunch of reasons, but we're now much deeper in the Vietnam War debate, right. More people have died. Protests are intense. Civil strife generally is pretty intense. And you have the Court being like, "Well, we're not sure that we give a shit about the speech of these fucking anti-war hippies." And then you have Douglas not just trying to undermine that claim directly but being like, "Smooth functioning of the draft. What are you talking about? I don't even think this fucking war's legal, bro." My man. So cool. So cool.

0:23:36.5 Peter: And we haven't talked too much about Douglas, but really quick overview, 'cause he's cool. FDR appointee, he's the author of Griswold v. Connecticut, the seminal right to privacy case, noted opponent of the Vietnam War. This is not the only case where that sort of pops up. Noted environmentalist; in Sierra Club v. Morton, he writes this famous dissent sort of philosophizing about whether trees should have standing to sue. [laughter]

0:24:03.7 Michael: Yeah, he's awesome.

0:24:06.2 S?: I am the Lorax. I speak for the trees. I speak for the trees, for the trees have no tongues. And I'm asking you, sir, at the top of my lungs.

0:24:15.8 Peter: You know, basically saying like, "Well, who's going to stand for the environment? Who represents the interests of the environment?" Just sort of like one of the last great left liberal thinkers on the bench. Like someone who it felt like had creativity in their opinions, and this is just a great example, like cutting past all the bullshit and being like, "Can't have a draft if you're not at war. And I don't think we are."

0:24:41.4 Michael: Yeah. "Show me the formal declaration of war. You can't 'cause there is none."

0:24:46.0 Peter: Right. Almost floating the idea that someone should challenge the constitutionality of the war. And that's just boss shit. That's just cool. Now, let's talk about the fact that it's 1968 a little bit. This is the Warren court, this is a liberal court. Earl Warren's in the majority. It might feel in a vacuum like an unusual outcome. You have this liberal court, you have the fucking FBI in Congress in cahoots to crack down on liberal speech and the court is endorsing it.

0:25:18.0 Peter: So probably worth going over what happens in the two months before this. In early April of 1968 MLK is assassinated. What follows are riots in Washington DC, where the justices do business, if not live. And so when this opinion is being written, there are riots in the streets. Like our last guest Stephen Vladeck said, when discussing this case, it's hard to discuss this case without adding that context in. Why do you get a liberal court siding with the feds here in what should be a relatively straightforward win for O'Brien, I would think? Well, because Washington DC's on fire and that colors their thinking. And I'm not going to make some bigger picture point about who liberals side with in times of civil strife, but perhaps you can infer. [chuckle]

0:26:20.6 Michael: Yeah. Think about what happened when there was mass mobilization just a few years ago around police brutality and how the liberal establishment sort of responded to that, and did you really feel like they had your back if you were in the streets? It's also worth noting that Warren, we talk about him as a great sort of liberal icon, and I think he was, as were many of the justices on that court, but this was back in the day when Supreme Court justices were not always judges beforehand. Like Warren himself was a governor and a politician. I mean, he was an attorney, but he had a political background.

0:27:04.5 Michael: And I think they understood themselves as politicians, and understood as well that if you start saying that you can't arrest someone for burning their draft card in the middle of all this unrest, people might just not listen to you, and some fights are not worth picking if you're concerned about your institutional power. And I don't know for sure, but I suspect that was on their minds as well. Like, we'll just marginalize ourselves if we side with O'Brien here.

0:27:37.8 Peter: Right. And we're in an era where Warren's leadership on the court is being questioned by the conservative political movement, right? Like throughout the '60s there are efforts to...

0:27:52.3 Michael: Impeach Warren.

0:27:53.6 Peter: Yeah. To get political momentum for impeaching Earl Warren. I think in his mind, you can only rule for O'Brien in a case like this so many times before you just lose the body politic, right, and all confidence in the institution is lost. Not that that justifies this garbage decision.

0:28:16.2 Michael: No.

0:28:16.2 Peter: But I think that's probably playing into what's happening here. Now, this case is actually very similar to a famous case from the late '80s, Texas v. Johnson. That was a case about flag burning, right? The court held 5-4 that a law prohibiting flag burning was an unconstitutional violation of free speech. Now, fun fact, one dissenter in that case was John Paul Stevens, who was a former serviceman, and I think weepily read his dissent from the bench, just loser behavior. [chuckle] Not cool. That's just an aside.

0:28:57.3 Michael: We love you, Justice Stevens, RIP.

0:29:00.6 Leon: Yeah. I mean, he made very few mistakes, but this is one of them.

0:29:02.6 Michael: Yeah, for sure.

0:29:03.3 Peter: So on the surface, these are very similar cases, to the point where I think it's probably worth clarifying why they came out differently. I will do my best to do that, although I don't really think you can. In Texas v. Johnson, the justification for the anti-flag burning law was that allowing flag burning would negatively impact national unity, right? They were just like, "This is about disorder and unity and the maintenance of national order." And the court rejected that argument, basically saying it's too directly related to free expression, which makes preserving national unity not a legitimate justification for the law. So preserving national unity, not a legitimate justification; preserving the smooth administration of the draft, that's cool. That's good and important.

0:30:03.0 Peter: So I guess the lesson is that if they wanted the anti-flag burning law upheld, they should have said that the justification was like the orderly operation of American flag manufacturing supply chains or something, like maybe that would've worked. Let's run that up to the Supreme Court now. I bet, I bet that flies. Like, you know, the only justifications that work, I guess, are just weird administrative bullshit, right?

0:30:29.2 Michael: Yeah.

0:30:29.7 Peter: I don't know.

0:30:30.0 Michael: You know, I think the answer is that in the '60s, like you said, DC was literally like on fire. There were riots. In the '80s conservatives were somewhat ascendant. Reagan was marching to a monstrous reelection at the time of the flag burning, and had been reelected at the time the case was decided. And I think his vice president had been elected president at that point. I think it was '89.

0:30:55.0 Peter: Yeah.

0:30:55.2 Michael: So it was like, you know, they were in charge, and it was a very libertarian sort of conservatism, right. And it was just like, "Whatever, let the stupid hippies burn their flag." Like the guy in the Big Lebowski, right. It was like, "The bums lost."

0:31:09.6 Peter: Yeah, I was definitely just thinking of Lebowski.

0:31:10.6 S?: Lebowski, condolences. The bums lost.


0:31:13.6 Michael: Like the bums lost, let 'em fucking burn their flags. Who cares? The guy was burning the flag outside the RNC for Reagan's renomination. Talk about ineffective protest. He won 49 states in that election. Like they didn't give a shit, like whatever, you know?

0:31:32.8 Peter: I do think that the real lesson, if you can pull out a thread of law, is that you can purposefully stifle speech. You just need a good enough excuse that the Court will humor it. And in Texas v. Johnson, they didn't quite get there. They didn't quite have one in the Court's mind. I also think that this sort of natural absurdity, like you can't burn a draft card, but you can burn the flag. I mean, it's hard to distinguish them as acts of expression. That sort of absurdity is what you get when you ignore the purpose of the law, right? Because I think that if the Court had a coherent analysis here and actually looked at like why this law was being passed, why this guy was arrested and convicted, they would have to come to the same basic conclusion in Texas v. Johnson. But because there is no coherence in the analysis, you don't get consistency between these opinions.

0:32:35.3 Michael: Yeah, I think that's right. O'Brien is still, I think we've mentioned good law, it's been expanded, and there are even articles talking about what they call like the O'Briening of First Amendment law, where a lot of other sort of tests have transformed into the same O'Brien test, where this has become almost a catch-all for like what are called time, place, and manner restrictions, like you can't be this loud in a residential neighborhood after 9:00 PM or whatever, like getting tests that look like O'Brien.

0:33:07.9 Michael: And so this case, this logic, this thread of logic, this legal test they developed, became very prominent in First Amendment analysis, which is kind of funny because this is a case where... It's like the test is just sort of backfilled bullshit. Everybody knew what this law was doing. They wanted to suppress this guy's speech and they made up a test to make it sound like they were really thoroughly considering the implications, and they were like, "But it passes the test. This law passes the test."

0:33:42.3 Peter: Right, right.

0:33:42.5 Michael: They made up a test to be passed. And then it passed, and then that test became one of the most important tests in First Amendment law. Extremely stupid. That is a common theme, though, in a lot of the stupid things in our law.

0:33:57.5 Peter: Yeah. I was thinking about how strict scrutiny comes out of Korematsu. A lot of the foundations of constitutional analysis come from the dumbest worst cases we have. And no one goes back and is like, "Hey, perhaps a case where the court concluded that we should do concentration camps should not guide our interpretation of racial discrimination under the law. Perhaps an incredibly intellectually dishonest case about protests of the draft should not guide our First Amendment law."

0:34:34.6 Peter: And so earlier I was talking about how this case allowed for the government to restrict speech as long as they have like an excuse, and perhaps even have the purpose of restricting speech as long as they have an excuse. I joked about that being a loophole, it's obviously a massive loophole, and that has created a space where the government can do a lot of things that suppress speech because they are able to manufacture a bullshitty reason why they're doing it.

0:35:12.2 Peter: So if you look at Ag Gag Laws, it's short for agriculture. These are laws that are targeting animal rights protesters. I imagine that everyone has at some point seen an animal rights protester sneak into a slaughterhouse or a factory farm and witness the conditions, film the conditions, and disseminate that information to spread awareness about animal cruelty. Many states have passed laws saying that's illegal, and every person involved knows what's happening. What's happening is industry players are going to the government and being like, "Hey, can you stop these animal rights protesters? They're hurting my business and I don't like that shit."

0:35:58.0 Peter: And the government is like, "Sure, we will do that to suppress their ability to speak to the public about what they witness on your properties." Everyone knows that that's the purpose of these laws, but O'Brien gives them leeway. It gives them a chance to manufacture an excuse about the safety of the property, the safety of the people on the property, the integrity of the operation, blah, blah, blah, blah, blah. These aren't good excuses. Some of these laws have been struck down. But it's enough that they can sort of utilize it as a foothold, pass the law and maybe even survive some court challenges.

0:36:39.3 Peter: You see the same thing with like pipeline protests. A lot of people who protest pipelines through Native land, for example, will get hit with charges that have unbelievable penalties. And why do they have unbelievable penalties? Well, because the government claims that it's dangerous to do things near a pipeline, for example. And that's just one of the many tactics they use, right? Now, everyone knows what the government's actually doing. They're creating laws that are targeting pipeline protesters.

0:37:12.8 Michael: Right, right.

0:37:13.8 Peter: And this case again gives them that sort of initial deniability. Like the law might not survive legal review, but if you can just come up with a plausible enough excuse or plausible enough reason, that's basically the end of the inquiry as far as courts are concerned. That's incredibly dangerous for protesters across every category. It is a case that has been functionally weaponized by legislatures across the country to target activists of all stripes. And those are just sort of examples off the top of my head. But I really think it's hard to overstate how dangerous this has been, and when you see headlines about some protester getting like 15 years for fucking trespassing or some shit like that, where you're like, "Hmm."

0:38:08.2 Michael: "That's weird."

0:38:08.9 Peter: "That seems like maybe it wasn't really about trespassing." That is made possible by this case. Now, before we wrap, in the last episode, we did tease the fact that we would finally reveal the podcast's position on the Vietnam War. That is because we were not aware that Rhiannon was such a strong supporter of the war when I said that.

0:38:32.6 Michael: That's right.

0:38:33.8 Peter: Now, she's not here, so we can discuss that we're trying to convince her that it was a mistake, but so far we've been unable to crack the facade she has held fast.

0:38:43.4 Michael: Yeah, that's right.

0:38:44.1 Peter: So we unfortunately don't have a single podcast position on the war. Sorry. I didn't mean to disappoint. I didn't mean to overpromise last time.

0:38:53.5 Michael: Yeah. And to be frank, I am a little divided myself. I think war in general is horrific. This one was hard to justify, but on the other hand, good movies came out of it. Apocalypse Now, Platoon. Those are the only two I can think of right now.

0:39:11.0 Peter: Yeah. Now, personally, I don't believe that that was worth it. Does that make me a hero? I don't know.

0:39:19.1 Michael: Or maybe you just hate the arts, Peter.

0:39:21.5 Peter: I wouldn't say I'm an arts guy.

0:39:28.2 Peter: Next week, special premium episode. We are going to be talking about the death penalty moratorium. There was a brief period in the '70s where the death penalty was functionally abolished in this country. We're going to talk about how it happened, how it got reversed and what it means.

0:39:52.2 Peter: Follow us on Twitter @fivefourpod, subscribe to our patreon, patreon.com/fivefourpod, all spelled out, for premium episodes, ad-free episodes, special events, discounts on merch, access to our Slack, all sorts of shit. You can also get premium episodes by subscribing through Apple in the Apple Podcast app if that's your bag. We'll see you next week.

0:40:17.6 Michael: Bye, everybody. 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our researcher is Jonathan de Bruin. [0:40:34.9] ____. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.