by Jim Newton
O’Brien, then nineteen years old, had mounted the steps of the South Boston courthouse with three companions—David Reed, David Benson, and John Phillips—on a March day in 1966.128 They burned their draft cards in front of a crowd. FBI agents were among those who watched, and when the crowd turned on the protesters, the agents pulled them inside. Once there, they were informed of their rights, and O’Brien admitted burning his card as a protest. He handed an FBI agent an envelope containing the charred remains of his card. The agent took four pictures of the burned card as evidence.129
O’Brien was charged with violating an amendment to the Universal Military Training and Service Act of 1948, an amendment that was passed in 1965 with little discussion by a nearly unanimous Congress, whose members were infuriated by the outbreak of draft-card burning as a form of protest. Tried in federal court, O’Brien was convicted and sentenced to an extraordinary six years in prison. His conviction was overturned on appeal, where the circuit court ruled that the amendment unconstitutionally abridged O’Brien’s right of free speech, though it also, in what the solicitor general would later describe as an act of “Yankee ingenuity,” held that O’Brien was guilty of failing to keep the card in his possession as required by the same law.130 Both sides appealed, the government to urge upholding of the amendment, O’Brien to contest his conviction for a crime he had never been charged with committing.131
O’Brien’s conviction put before the Court yet again the question of where speech left off and conduct began—and whether the Court was willing to defend forms of protest that went beyond words. Indeed, as a style of protest, O’Brien’s act seemed hard to distinguish from that of the black students who sat down in a Louisiana library in order to protest its refusal to serve Negro patrons. Neither was an act of pure speech. In the case of the Negro demonstrators, their message had been communicated by sitting down; in O’Brien’s, by striking the match to the two-by-three-inch piece of paper that the government required him to carry and forbade him to destroy. Warren’s clerk Larry Simon warned him that to declare O’Brien’s act something other than speech was problematic—“there are several cases in the books where this Court has held that ‘conduct’ is speech within the First Amendment,” he wrote, specifically citing the Louisiana library sit-in ruling, which Warren had joined. Like the Negro protesters, O’Brien was engaged in conduct “to express an idea.”132 All of that was true and well stated. What was clearly different, however, was the target of those protests: the Negro students aimed at segregation, and the Court shared their views; O’Brien and his colleagues were challenging the war, and the Court did not agree.
That is hardly the basis for a constitutional distinction, and Warren’s style of judging—his reliance on his own instincts for society’s well-being—failed him here as it had in his futile attempts to create a workable obscenity doctrine.
O’Brien’s lawyer, Marvin Karpatkin, tried to emphasize to the Court the character of O’Brien’s act—it was public and intended to convey a political message; as such, it deserved to be treated as speech. Warren was skeptical from the start. “Suppose a soldier over in Vietnam in front of a large crowd of soldiers, broke his weapon, and said it was a protest against the war and the foreign policy of the government,” Warren asked. “Would that be symbolic speech?”
Karpatkin, who would go on to represent Muhammad Ali in his draft litigation several years later, conceded that he did not know the answer to Warren’s hypothetical. Karpatkin acknowledged, however, that not all political action was speech; assassination, for one thing, clearly was not protected. Fortas then pressed the question, asking whether a person could object to the tax code by destroying tax records, and whether the government could prosecute such a person for failure to maintain such records. Karpatkin fell back on the argument that in order to regulate symbolic speech, the government must demonstrate a valid purpose. That was all Warren needed. As he wrote in the final opinion:
We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it.133
In one sense, that approach was a vast improvement over Warren’s initial tack—the exasperating attempt to distinguish between the “speech” and the “conduct” of draft-card burning. Instead, he and the Court substituted the idea that Congress may not regulate speech by virtue of its content—a principle that has outlived the specifics of O’Brien and continues to define speech regulation in contemporary America under the aptly named “O’Brien test.” Whether that test was applied correctly to O’Brien himself is another matter, as the Court’s determination to snuff out draft-card burning, a determination adamantly shared by Warren himself, seemed to overwhelm its cool application of its new principle. That was further illustrated by another aspect of the Court’s opinion, one that entailed a bit of sophistry. Congress’s purpose in passing the act itself was to raise and maintain an army, but its “purpose” in passing the amendment was to prohibit draft-card desecration, which barely, if at all, helped its job of defending the nation. The real purpose of the amendment was to punish those who protested the war. But rather than admit that, Warren pretended that the Court could not examine Congress’s motives. Calling such an inquiry “hazardous,” Warren wrote, “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”134 That had not stopped the Court before—Warren had been willing to examine the motives of the legislators who adopted the Fourteenth Amendment, and, more recently, the Court had overruled the gerrymandered city limits in Tuskegee, Alabama, because the legislature there had adopted them with the intent to “despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.”135 But now, confronted with a form of protest it deplored against a war it accepted, Warren led the Court to uphold O’Brien’s conviction and reinstate his prison sentence.
Warren’s opinion was unpopular among his clerks and those of the other justices, most of them draft-age men whose sympathies ran against the war. After O’Brien was announced, a group of women from Connecticut attempted to hold a “burn-in” on the Court steps but were rained out. “Perhaps,” Brennan’s clerks noted hopefully at the term’s end, “O’Brien as a legal precedent will likewise be confined and fizzle.”136
O’Brien got no sympathy from Warren, and he felt the sting of offending Warren’s principles. By contrast, a Florida inmate named Bennie Brooks, convicted of participating in a 1965 prison riot, touched Warren’s sense of injustice. And just as Warren could be hard in opposition, so could he be effective in support. There did not, at first, seem much that Warren could do in Brooks’s case. Brooks was one of more than a dozen Florida inmates at Raiford State Prison who had been convicted of participating in the riot. His conviction added time to his sentence and was obtained partly on the basis of his confession, which he had given after spending two weeks in a disciplinary “hole.” All the justices but Warren voted not to hear the case; it seemed to them a matter of internal prison discipline. Warren rarely dissented from such denials, but this time he was angered by the prison officials. His clerk Tyrone Brown wrote up a simple dissent, but Warren sent him back to work on it again. Brown, the only African-American to serve as a Warren clerk, added more detail on prison discipline in order to demonstrate why this was not an internal matter but rather one for the Court. Warren still was not satisfied, and called Brown in again.
“Let’s tell them what really happened,”
Warren said. “Tell them that the authorities placed these men in threes in tiny sweat boxes for two weeks, naked on a starvation diet with just a hole in the floor to defecate in! Tell them that they brought these men out, still naked, and forced written confessions from them! Tell them that these confessions were used to convict these men of new crimes, that many years were added to the terms they already were serving. Tell them what really happened in plain language . . . and let posterity decide who was right.”137 Brown did as directed, and Warren closed his dissent with an angry sign-off: “The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Court.”138
Warren circulated his dissent on November 9, 1967. The following day, Fortas joined him. Over the next few weeks came identical changes of heart by White, Stewart, Black, Brennan, Marshall, Douglas, and, on December 13, Harlan. Warren’s lone dissent was transformed into a unanimous, per curiam, opinion of the Supreme Court. Bennie Brooks’s conviction was reversed. Brooks v. Florida will not stand shoulder to shoulder in history with Brown v. Board of Education or Baker v. Carr or Miranda, but as insight into Warren it is just as profound—Bennie Brooks got justice from the United States Supreme Court because Warren was practical and professional, stubborn on principle, and committed to fairness, no matter how small the case.
Irritation with antiwar protest caused Warren to retreat from protecting symbolic speech in O’Brien. Similarly, the nation’s rising crime troubles edged Warren and the Court away from its protection of criminal suspects. Urban riots had become an annual summer feature of American life by the mid-1960s, and crime was alarmingly on the rise. Johnson himself proposed the Omnibus Crime Control and Safe Streets Act in 1967, and though it failed that year, he came back at it in 1968, doubling the appropriation and declaring in his 1968 State of the Union Address that there was “no more urgent business before this Congress” than passage of the bill intended to spend $100 million of federal money fighting urban crime.139 National alarm about crime metastasized in some quarters into anger at the Warren Court, where judicial rulings such as Miranda caused critics of the Court to blame it for coddling criminals.
The case of Terry v. Ohio, argued just a month before Johnson’s 1968 State of the Union Address, allowed the Court to clarify how far it intended to go in proscribing police action.140 The arc of cases from Gideon through Miranda suggested that the Court was intent on holding back police and prosecutorial advantage, but those cases generally arose in safer times. Now the Court took stock of the changing criminal landscape and reaffirmed the validity of police “hunches” in the maintenance of a safe society.
The case began on the streets of Cleveland on the afternoon of Halloween in 1963. Detective Martin McFadden of the Cleveland police department was at work that afternoon when he spotted John Terry and Richard Chilton, two black men, standing on a corner in a neighborhood known for pickpockets and thieves. McFadden was a veteran police officer, with thirty years’ experience and knowledge of the neighborhood in downtown Cleveland. He couldn’t say precisely what bothered him about Terry and Chilton, except to say that “they didn’t look right to me at the time.” As he watched from a few hundred feet away, the two men paced along a sidewalk, gazed into store windows, and then conferred with each other. They repeated this several times, and McFadden, by now very suspicious, concluded that they were casing the stores, planning a robbery.141 The detective approached the two men. He asked their names, and when they “mumbled” a reply, he spun Terry around and patted down the outside of his clothing. McFadden found a gun and then found one on Chilton as well. They were arrested, charged with carrying concealed weapons, convicted, and sentenced to prison. Their convictions were upheld on appeal, and the Court then accepted their case for review.
At their December 13, 1967, conference, Brennan suggested that the case depended on a finding of probable cause—“probable cause to investigate suspicious behavior and ask the person to give an account of himself, and probable cause to believe that a suspect might be armed and dangerous.” The other justices agreed and unanimously voted to uphold Terry’s conviction (Chilton, though also convicted, had died before the case reached the Supreme Court), though Warren warned that he believed that unless the police had sufficient cause to arrest the suspect, the suspect could simply walk away without answering the officer.142 Since Brennan had first articulated the “probable cause” approach, he expected to be given the opinion; Warren instead took it himself, disappointing his colleague. Warren’s first attempts illuminated how affected he was by the charge that the rise in crime was somehow his fault or that of his Court. The first draft was “almost embarrassingly sympathetic to the plight of the policeman.”143 The second was much better. “The opinion,” Brennan’s clerks wrote, “read dangerously much like an apology for past decisions which have been charged with having overly restricted the police.”144 In a memo to Warren, Brennan gently suggested that the opinion would be read against the “alarums being sounded in this election year in the Congress, the White House and every Governor’s office.” Given that, Brennan implored Warren to modulate his tone and not appear to give too much license to police. “It will not take much of this [increased police aggressiveness] to aggravate the already white heat resentment of ghetto Negroes against the police—and this Court will become the scapegoat.”145
With his memo and private meetings, Brennan went to work on Warren, trying to tone down the apologia and straighten out the logical flaws that flowed from Warren’s attempt to back away stylistically from Miranda without substantively undermining it. All of that was time-consuming, and deliberations among the justices over Terry continued through the spring.
Then came the cataclysmic series of events of 1968. The first erupted in a far-away jungle at the end of January, when 70,000 Communist troops launched simultaneous attacks on more than a hundred South Vietnamese cities, including the capital, Saigon. The Tet offensive was repelled, and the enemy suffered heavy casualties, but the breadth of the assault showed that the North Vietnamese were far from folding. Johnson teetered toward exhaustion as he paced the White House halls at night awaiting updates from the combat theater. Meeting privately with his old friend Richard Russell, Johnson broke down in tears.146 Anguished by the war and stunned by Eugene McCarthy’s surprisingly strong showing in the New Hampshire primary, Johnson on March 31 astonished the nation and even his own advisers by concluding a speech on Vietnam with a self-inflicted end to his life in politics. “I shall not seek, and I will not accept, the nomination of my party for another term as your President,” Johnson announced that night.
Hugo and Elizabeth Black opposed the war, but applauded the president’s speech. It would, Hugo said, “make LBJ a hero.”147 Warren, then still a supporter of the Vietnam War, was moved as well. “Your burden has been great but your reward will be greater,” Warren wrote to the president whose reelection the chief justice had hoped for.148 Johnson worked hard on his reply, uncharacteristically fiddling with several drafts. In the words he finally settled on, the president called Warren “the kindest as well as the wisest man I have ever known. Your recent letter,” Johnson added, “confirms my judgment and adds to my great debt of the heart.”149
Barely had the nation absorbed Johnson’s news before it was confronted with another, far more tragic loss. Martin Luther King had come to Memphis, Tennessee, in the spring of 1968 to support that city’s sanitation workers in their tense negotiations with City Hall over union representation and over efforts to settle a strike begun in February. King led a march on March 28, but it degenerated into violence and police reprisal before the National Guard was called out to restore order. On April 3, King returned to Memphis and appeared before the group supporting the sanitation workers. Near the end of his speech that night, King reflected on the threats made against his life by “some of our sick white brothers.” “Well, I don’t know what will happen now. We’ve got some difficult days ahead,” he conceded. But, h
e added in strong and melodic voice,
It really doesn’t matter with me now because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life—longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over, and I’ve seen the Promised Land. I may not get there with you. But I want you to know tonight that we, as a people, will get to the Promised Land. And I’m so happy tonight; I’m not worried about anything; I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.150
The following day, King was dead. America’s cities exploded. “All hell has broken loose in Washington,” Elizabeth Black wrote in her diary. “Phones are jammed and it is incredible that the Nation’s Capital is in the hands of lawless mobs.”151
Johnson dispatched federal authorities to Memphis to search for the assassin—James Earl Ray would elude police for weeks. In Washington, the president summoned advisers and surrounded himself with icons of the struggle for civil rights. Fortas, who had argued Gideon, was there. Marshall, who had argued Brown, was there. And of course, Warren, who had led the Court in those and so many other cases advancing the cause of American blacks, was there as well. Marshall and Warren accompanied Johnson to a memorial service for King even as large chunks of Washington were set afire. So edgy were those hours that Floyd McKissick, a leader of the Congress of Racial Equality, demanded to know the guest list before agreeing to attend a White House meeting with civil rights leaders, then, hiding in fear for his life, showed up at the White House gate “with two other Negroes.” Told he could join the meeting but that his companions would have to wait, McKissick disappeared into the afternoon.152
