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.