The contrary teaching of Whitney v. California cannot be supported, and that decision is therefore overruled. Mr. Justice Douglas , concurring. While I join the opinion of the Court, I desire to enter a caveat. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.
Action is often a method of expression and within the protection of the First Amendment.
But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment. One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated.