O’Brien Formula

The O’Brien formula originated from the case United States v. O’Brien (1968). In that matter, O’Brien burned his draft registration card in protest of the Vietnam War. He was arrested and convicted for violating a federal law criminalizing the destruction of draft cards. O’Brien argued that his actions were protected as symbolic speech under the First Amendment’s freedom of expression. In a seven-to-one decision, however, the Supreme Court upheld the conviction by establishing a test to determine when governmental regulation involving symbolic speech (conduct combining both ‘‘speech’’ and ‘‘nonspeech’’ elements) is justified.

The O’Brien formula states that conduct combining both elements can be regulated if four requirements are met:

1. The regulation is within the constitutional power of the government.

2. It furthers an important or substantial governmental interest.

3. That interest is unrelated to the suppression of free expression.

4. The incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of the governmental interest.

In its O’Brien decision, the Supreme Court reasoned that First Amendment guarantees do not permit destruction of a draft registration certificate. The Court maintained that regulation of the draft is within the government’s constitutional power and that the government’s interest in the efficient functioning of the Selective Service System is substantial. Since the government has a substantial interest in regulating draft registration, any infringement on O’Brien’s right to symbolic speech was merely incidental. Therefore, O’Brien could be charged with criminal conduct for burning his draft registration card.

LEE R. REMINGTON

References and Further Reading

  • Arbetman, Lee P., and Edward L. O’Brien, eds. Street Law: A Course in Practical Law. 6th ed. Lincoln, IL: National Textbook Company, 1999.
  • Texas v. Johnson, 491 U.S. 397 (1989).
  • Tribe, Laurence H. American Constitutional Law. 3rd ed. New York: West Publishing Company, 1999.
  •  Willis, Clyde E. Student’s Guide to Landmark Congressional Laws on the First Amendment. Westport, CT: Greenwood Press, 2002.

Cases and Statutes Cited

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

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