George Mason Law Review Civil Rights Law Journal

part in the consideration or decision of these cases

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It is so ordered.

MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.

Concur by: HARLAN


MR. JUSTICE HARLAN, concurring.

The crux of the Court's opinion, which I join, is of course its general statement, ante, at 377, that:

"a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial  [***687]  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."

I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an "incidental" restriction upon expression, imposed by a regulation which furthers an "important or substantial" governmental interest and satisfies the Court's other criteria, in practice has the effect of entirely preventing a "speaker"  [*389] from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since Geiss manifestly could have conveyed his message in many ways other than by burning his draft card.

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