O’Brien Content-Neutral Free Speech Test

In United States v. O’Brien (1968), a federal statute that made the destruction of a draft card a crime was challenged by a demonstrator who burned his card as a symbolic act of protest against the Vietnam War. The Court upheld this application of the statute by invoking a novel standard that has come to be known as the ‘‘O’Brien rules’’ or the ‘‘O’Brien contentneutral free speech test.’’ Although the standard was announced for that particular case, the rules were not by their terms limited to regulations of symbolic expression and the Court has used the O’Brien rules to determine the validity of various types of contentneutral time, place, and manner regulations.

Under the O’Brien rules, government regulation that applies to a form of expression is constitutional if: (1) it is within the constitutional power of government, (2) it furthers an important or substantial governmental interest, (3) that interest is unrelated to the suppression of speech, and (4) the restriction it incidentally imposes on speech is no greater than necessary to further that interest. Note that the O’Brien rules do not explicitly require that the regulation be content neutral. In Members of the City Council v. Taxpayers for Vincent (1984), however, the Court upheld an ordinance that prohibited the posting of signs on various kinds of public property by first characterizing the ordinance as content neutral and then applying the O’Brien rules. That case implicitly suggests that a requirement of content (or at least viewpoint) neutrality is to be added to the rules when they are used to test a time, place, and manner regulation. This view finds further support in cases such as Clark v. Community for Creative Non-Violence (1984), a case sustaining a prohibition against camping in certain public parks as applied to demonstrators, and Ward v. Rock Against Racism (1989), dealing with restrictions on volume of sound at outdoor performances, where the Court said that the standards governing content-neutral time, place, and manner regulations are ‘‘essentially the same’’ as the O’Brien rules.

This essential similarity between the O’Brien rules and the Court’s ‘‘normal’’ ‘‘time, place or manner’’ test is particularly important in determining what standard of scrutiny is appropriate under the fourth prong of the O’Brien rules: that ‘‘the restriction it incidentally imposes on speech is no greater than necessary to further that interest.’’ While the plain language of this prong sounds like the ‘‘least restrictive alternative’’ test normally employed in heightened scrutiny, the Court in Ward stated clearly that content-neutral time, place or manner regulations should be judged under the ‘‘narrowly tailored’’ standard, rather than the ‘‘least restrictive alternative’’ test. Accordingly, if the O’Brien rules and the test for content-neutral regulations are essentially similar, then prong four of O’Brien should be read as requiring only that the regulation be narrowly tailored.

The Court derived the O’Brien rules in a case that involved symbolic expression, burning a draft card as an expression of political protest, and has subsequently applied the rules to regulation of various types of symbolic speech. In Texas v. Johnson, for example, the Court struck down a Texas statute prohibiting anyone from defacing or damaging a flag ‘‘in a way that the actor knows’’ will be offensive to observers. Justice Brennan’s majority opinion held that the law was unconstitutional, in part because the flag desecration statute failed O’Brien’s third prong: the statute was not ‘‘unrelated to the suppression of speech’’; rather, it was explicitly aimed at preventing desecration of the flag as a form of protest. One year later, in United States v. Eichman (1989), the Court struck down a federal statute, enacted in reaction to Texas v. Johnson (1989), that criminalized defacing, defiling or burning the flag, with Justice Brennan again writing a majority opinion finding that the statute had the impermissible purpose of seeking to suppress desecration of the flag as a form of expression.

The Court’s application of the O’Brien rules to regulation of nude and topless dancing has engendered significant criticism, however. In a 1991 case, Barnes v. Glen Theatres, Inc. (1991), the Court upheld an Indiana statute that banned public nudity, which had been challenged by the owners of two adult cabarets on the ground that it infringed on their constitutional right to present the nonobscene erotic messages conveyed by totally nude dancing. Here, applying the O’Brien rules, Justice Rehnquist’s plurality opinion emphasized that the statute was aimed at regulating conduct rather than at suppressing speech and was justified by the state’s traditional interest in regulating conduct to promote order and morality. The plurality conceded that nude dancing was expressive conduct within the outer perimeters of the First Amendment, but argued that this did not undercut its validity because the measure was not aimed at preventing nude dancing, but at banning nudity. The effect of the ordinance on nude dancing was incidental, the plurality held, because the requirement that a dancer wear pasties and a G-string did not deprive her dance of whatever erotic message it was intended to convey. It simply made the message less graphic. But Justice White’s dissent on behalf of four members of the Court argued that the statutory ban was premised on the erotic content of the message conveyed by nude dancing. It therefore discriminated on the basis of content and thus should not be evaluated under the O’Brien rules for content-neutral regulations but rather under strict scrutiny, which it could not survive.

The Court revisited the nude dancing issue again in 2000 in City of Erie v. Pap’s A.M. (2000), involving a Pennsylvania statute similar to the one upheld in Barnes, that had been ruled unconstitutional by the Pennsylvania Supreme Court because it had the ‘‘unmentioned purpose’’ of suppressing erotic expression. The Court upheld the statute, with a plurality affirming that government restrictions on public nudity should be evaluated under the O’Brien rules for content-neutral restrictions on symbolic speech.

ALAN C. WEINSTEIN

References and Further Reading

• Braverman,Daan, WilliamC. Banks, and Rodney A. Smolla. Constitutional Law: Structure and Rights in Our Federal System. 5th ed. Newark, NJ: LexisNexis, 2005.
• Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
• Ross, Susan, Reconstructing First Amendment Doctrine: The 1990 [R]Evolution of the Central Hudson and O’Brien Tests, Hastings Communications and Entertainment Law Journal, 23 (2000–2001): 4:723–50.
• Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).

Cases and Statutes Cited

• Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991)
• City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)
• Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
• Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
• Texas v. Johnson, 491 U.S. 397 (1989)
• United States v. Eichman, 486 U.S. 310 (1989)
• United States v. O’Brien, 391 U.S. 367 (1968)
• Ward v. Rock Against Racism, 491 U.S. 781 (1989)