United States v. O’Brien
Citation and Court
391 U.S. 367 (1968) — Supreme Court of the United States
Facts
David Paul O’Brien burned his Selective Service draft card on the steps of the South Boston Courthouse to protest the Vietnam War. He was convicted under a federal law making it a crime to knowingly destroy or mutilate a draft card. O’Brien argued the conviction violated his First Amendment right to free expression because the burning was a form of symbolic political speech.
Issue
Whether a federal statute prohibiting the destruction of draft cards is an unconstitutional abridgment of free speech as applied to a person who burns a draft card as a form of political protest.
Holding
No. The anti-draft-card-burning statute is constitutional. The government has a substantial interest in maintaining an efficient draft registration system, and that interest is sufficient to justify the incidental burden the law imposes on O’Brien’s symbolic expression.
Rule / Doctrine
O’Brien test for laws incidentally burdening expressive conduct: a government regulation is sufficiently justified even if it incidentally restricts some First Amendment freedoms if: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Significance
O’Brien is the foundational test for intermediate scrutiny of laws that burden symbolic speech or expressive conduct as an incidental, not targeted, effect. It is applied to content-neutral regulations that affect expression and is contrasted with strict scrutiny, which applies to laws targeted at expression because of its message.