United States v. O’Brien
391 U.S. 367 (1968)

  • When a man turned 18, he was required to register for the draft. He was given a certificate (aka a draft card) with his draft status on it.
  • In order to protest the Vietnam War and the draft, O’Brien and 3 other guys publicly burned their draft cards. They were arrested.
    • There was a Federal law (50 U.S.C. 462(b)) making it a crime for anyone to forge, alter or destroy a draft card.
  • The Trial Court found O’Brien guilty of destroying his draft card and was sentenced to 6 years in prison. He appealed.
    • O’Brien claimed that his actions were covered under the 1st Amendment’s right to free speech, and so the law was unconstitutional.
    • The prosecutor argued that the law had nothing to do with free speech, it was about maintaining important government records.
      • The prosecutor also argued that burning a draft card wasn’t speech.
  • The Appellate Court reversed and overturned the conviction, the prosecutor appealed.
  • The US Supreme Court reversed and upheld the conviction.
    • The US Supreme Court acknowledged O’Brien’s claim that his symbolic gesture was a form of speech.
    • The US Supreme Court developed a 3-part test (now known as the O’Brien Test) to determine if a government regulation is sufficiently justified to warrant an infringement on the 1st Amendment:
      • Does it further an important or substantial governmental interest,
        • Aka is there a compelling government interest?
      • Is the governmental interest unrelated to the suppression of free expression, and
        • Aka is it content neutral?
      • Is the incidental restriction on alleged 1st Amendment freedoms not greater than is essential to the furtherance of that interest?
        • Aka is it narrowly tailored?
    • In this case, the Court found that the law did not violate the 1st Amendment because its effect on speech was only incidental, and it was justified by the compelling government interest in maintaining an efficient and effective military draft system.
      • Although, a look at the legislative history of 50 U.S.C. 462(b) implies that the congressional intent was to punish people who were burning their draft cards, not to maintain an efficient draft system.
  • Basically, this case says that any conduct which communicates is theoretically covered by the 1st Amendment. However, that does not mean that it is immune from government regulation.
    • But the Court will apply essentially a strict scrutiny test.