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

On the morning of March 31, 1966, David Paul O’Brien mounted the steps of the South Boston Courthouse where he burned his Selective Service registration certificate, or ‘‘draft card.’’

O’Brien’s actions were not only a provocative form of protest but also a crime. After widespread publicity about Draft Card Burnings, in August 1965, Congress amended the Selective Service Act to make criminally liable anyone who ‘‘knowingly destroys’’ or ‘‘knowingly mutilates’’ a draft card. O’Brien was convicted of violating these provisions of the Act over his objection that the 1965 Amendment violated his First Amendment right to protest the draft and the Vietnam War through the ‘‘symbolic speech’’ of draft-card burning.

The United States Supreme Court rejected O’Brien’s First Amendment argument. In doing so, the Court described a test to determine whether regulation of symbolic speech, or, as it is more typically labeled today, ‘‘expressive conduct,’’ is constitutionally permissible. In a seven-to-one opinion, Chief Justice Warren established that such regulation would not be subjected to strict scrutiny, but would, instead, be upheld if it passed a four-part test. A regulation would be permissible if it: was within the ‘‘constitutional power of the Government’’; it advanced ‘‘an important or substantial governmental interest’’; that interest was not ‘‘the suppression of free expression’’; and what incidental impact it had on free expression was no greater than necessary to accomplish the governmental interest. Applying the test to O’Brien’s case, the Court upheld his conviction.

The O’Brien test, with its intermediate level of scrutiny, remains the standard by which the Court evaluates the regulation of such expressive conduct as nude dancing.

ROBERT N. STRASSFELD

References and Further Reading

• Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2nd ed. New York: Aspen Publishers, 2002, pp. 1026–1029.
• Foley, Michael S. Confronting the War Machine: Draft Resistance during the Vietnam War. Chapel Hill: University of North Carolina Press, 2003, pp. 20–26, 42–46, 281–282.
• Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton & Co., 2004, pp. 471–477.

See also Barnes v. Glenn Theatre Inc., 501 U.S. 560 (1991); Draft Card Burning; Flag Burning; Intermediate Scrutiny Test in Free Speech Cases; O’Brien Content- Neutral Free Speech Test; Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981); Symbolic Speech