The Vietnam War and Political Protest

In October 1965, 100,000 people in 80 cities across the country turned out to protest against the escalating U.S. military intervention in Vietnam. In March of the following year, David Paul O'Brien and three of his friends burned their draft cards on the steps of the Boston Courthouse to demonstrate their opposition to the draft and to the Vietnam War. O'Brien was convicted of violating a federal law that prohibited anyone from "knowingly destroying or mutilating" his draft card. He appealed his conviction on the grounds that his act was a form of "symbolic speech" and was therefore protected under the First Amendment. An appellate court agreed with O'Brien, but the federal government pursued the case to the U.S. Supreme Court, which issued its ruling in May of 1968.

With only one justice dissenting, the Court upheld O'Brien's conviction, declaring that the government had a legitimate interest in ensuring that the Selective Service System (the official name of the agency responsible for administering the military draft) ran in a smooth and efficient manner, and that the destruction of draft cards would interfere with this interest. In effect, the Court stated that O'Brien was guilty of destroying government property, not of expressing opposition to American foreign policy. The test employed by the Court in this case would become important for later "symbolic speech" cases involving the burning of the American flag.

Three months after the Court's decision in the O'Brien case, the nation witnessed one of the most dramatic and violent episodes of antiwar protest during the Democratic National Convention in Chicago. With millions watching on television, members of the Chicago police force, acting on orders from Mayor Richard Daley, attacked and arrested hundreds of protesters who had assembled in Chicago to express their opposition to the Vietnam War. A number of journalists, including CBS reporters Dan Rather and Mike Wallace, were also assaulted on the floor of the convention by the Chicago police. Although a national commission later determined that the violence in Chicago was the result of a "police riot," eight leaders of the antiwar movement were arrested and put on trial for conspiracy to incite violence. During the trial of the "Chicago Eight," the judge ordered that defendant Bobby Seale, a leader of the Black Panther Party, be bound, gagged, and chained to his chair in the courtroom, after Seale protested the judge's refusal to allow him to choose his own attorney.