Several years before mass demonstrations protesting America’s involvement in the Vietnam War became commonplace in the 1970s, David Paul O’Brien, along with three others, stood on the steps of the South Boston, Massachusetts, courthouse and, in front of a crowd of people, burned his selective service registration certificate, better known as a draft card. It was March 31, 1966, and O’Brien’s protest provoked the crowd to attack him and his companions. Among the onlookers were several FBI agents; after ushering O’Brien inside the courthouse, they arrested him for violation of Title 50 of the United States Code, section 462(b), prohibiting the willful and knowing mutilation or destruction of a registration certificate. Throughout the course of the litigation, O’Brien claimed that his conviction was barred by the First Amendment. At trial, he admitted that he knowingly destroyed his draft card, but took the position that his conduct was intended to be public affirmation of his disapproval of the draft and the war, and the lawful exercise of free speech.
O’Brien was convicted in the District Court for the District of Massachusetts. On appeal, the First Circuit held that the statute criminalizing the mutilation of the draft card was an unconstitutional infringement on the defendant’s rights of free speech. It did, however, affirm his conviction based upon a regulation that required persons to carry their registration cards with them at all times, a crime with which he had not been charged or convicted.
O’Brien and the United States appealed. The Supreme Court granted certiorari and, in what might be considered a landmark case, held that the question of whether ‘‘expressive conduct’’ or ‘‘symbolic speech’’— that is, activity containing speech and nonspeech elements— is protected by the First Amendment will be governed by a four-prong test. The so-called ‘‘O’Brien test’’ is generally acknowledged to be less exacting than strict scrutiny and is sometimes referred to as ‘‘intermediate scrutiny’’:
[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 (United States v. O’Brien, 391 U.S. 367, 377, 1968).
Writing for the Court, Chief Justice Earl Warren refused to concede that O’Brien’s conduct was actually intended to send a message; however, he proceeded to apply the test to the facts of that case. After first acknowledging that Congress’s power to raise and support armies and to make all laws necessary and proper to achieve that end is extremely broad, the Court proceeded to announce four purposes of the selective service registration card and the restrictions relating to prohibition against mutilation, none of which was aimed at expression.
First, the Court said, the certificate was proof that the holder has registered for the draft. In a time of national crisis, possession of the registration card (which, along with the certification card that also had to be kept on one’s person, contained all relevant information concerning the holder’s draft status) facilitated ‘‘immediate induction, no matter how distant in our mobile society [the registrant] may be from his local board.’’ Second, the cards together facilitated communication with the local draft boards. Boards could respond to requests for information more easily if the person requesting the information had all this information on hand at all times. Third, carrying both cards was a reminder to the holder that he had to inform the local draft board of any changes in the information, such as his residential address. Finally, the prohibition against mutilation assisted the government in achieving the permissible purpose of prohibiting alteration of the cards for a deceptive reason.
The Court then disposed of O’Brien’s argument that these interests were already furthered by the requirement that the cards be kept on one’s person because the two statutes protect overlapping but different governmental interests. The Court noted that the antidestruction provisions would apply to a person’s mutilating a third party’s certificate, but the possession requirements applied only to the owner of the certificates. The Court dealt with the fourth prong—the narrowness of the regulation—merely by concluding that it could perceive no alternative that would more narrowly achieve the government interests at stake.
Finally, the Court addressed O’Brien’s contention that the statute was passed with the intent of curtailing speech, an argument that had factual support. O’Brien relied on statements made by three congressmen that the statute was enacted to stop dissidents from burning the cards in protest of the war in Viet Nam. The majority summarily disposed of the arguments by reaffirming long-standing Supreme Court jurisprudence that legislative purpose is difficult to ascertain and is not a legitimate basis for declaring a facially constitutional statute unconstitutional. Besides, the Court said, hearings before the Senate and House Armed Services Committees spoke not only to the ‘‘defiant’’ destruction of the cards, but also to the necessity of maintaining them to ensure the smooth functioning of the selective service system, a goal unrelated to expression.
Justice Harlan issued a brief concurrence to make explicit his belief that the O’Brien test would not ‘‘foreclose consideration’’ under the First Amendment of claims based upon regulations at issue that passed that test, but had the effect of preventing entirely communication of the speaker’s views. O’Brien, he said, had other ways of making his position heard.
Justice Douglas dissented. Congress, he said, had no authority to conscript persons in the absence of a declaration of war; therefore, the statutes at issue were beyond Congress’s power. The justice would have addressed that issue, not raised by O’Brien, but raised apparently by a number of cases in which the Supreme Court had refused to grant certiorari.
The O’Brien case is frequently referred to as the ‘‘leading case’’ in First Amendment jurisprudence when courts are called upon to evaluate so-called ‘‘content-neutral’’ statutes—that is, statutes not aimed at the message being expressed. The Supreme Court has directly relied on O’Brien in deciding a number of First Amendment cases since 1968. Twice, the Supreme Court has applied the O’Brien test to ordinances regulating public nudity. In Barnes v. Glen Theaters, 501 U.S. 560 (1991), and City of Erie v. Pap’s A.M., 529 U.S. 57 (2000), first a plurality then a majority of the Court applied O’Brien and held that public nudity statutes (which prohibited nude dancing and required dancers to wear pasties and g-strings) were constitutional, even though they imposed an incidental burden on expression, because a government clearly has the authority to regulate societal order and morality and, in these cases, it did so in a manner unrelated to expression. The requirement that dancers wear pasties and a g-string was a ‘‘de minimus’’ interference with the dancers’ abilities to send the erotic message.
Two years earlier, the Court considered applying O’Brien to one of the numerous flag-burning statutes that have come before the Court. In Texas v. Johnson, 491 U.S. 397 (1989), the Court rejected applying the more lenient standard because Texas could not posit a purpose to the statute prohibiting mutilation of the flag that was unrelated to speech; therefore, the ‘‘more exacting’’ strict scrutiny standard applied. The Court did, however, reconfirm that not all conduct with a communicative element will be suitable for the O’Brien approach. Not only must the intent to communicate a message be present, but there must be a great likelihood that observers would understand the message sought to be communicated.
Although the genesis of the O’Brien test was a case involving what is called ‘‘symbolic speech’’ or ‘‘expressive conduct’’ (in which the effect on speech is only ‘‘incidental’’), the standard has been applied to factual situations bearing little resemblance to those of the original case, though not without criticism. In Turner Broadcasting v. F.C.C., 520 U.S. 180 (1997), the Supreme Court held the ‘‘must carry’’ provisions of the FCC were content-neutral regulations that ‘‘advance[d] important governmental interests unrelated to the suppression of free speech and [did] not burden substantially more speech than necessary to further those interests,’’ citing O’Brien.
Following the lead of the Supreme Court, lower courts have frequently used O’Brien interchangeably with the ‘‘time place and manner’’ test generally applicable to any content-neutral statute or regulation, whether its effect on speech is incidental or not. O’Brien’s ‘‘balancing approach’’ has also been said to have spawned the standard currently used by the Supreme Court to evaluate laws and regulations that affect commercial speech, causing some confusion among courts and frequent disapproval from constitutional scholars.
CONSTANCE L. RUDNICK
References and Further Reading
Cases and Statutes Cited