UNITED STATES v. O'BRIEN

Legal Principle at Issue

Whether burning a draft card as part of an anti-war protest is symbolic speech protected by the First Amendment.

Action

The Supreme Court upheld O’Brien’s conviction.

Facts/Syllabus

David Paul O'Brien burned his Selective Service registration certificate before a sizable crowd on the steps of a South Boston courthouse in protest of the Vietnam War in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating the Universal Military Training and Service Act of 1948, subdivision (3) of which applies to any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate" the words italicized herein having been added by amendment in 1965. 

The District Court rejected O'Brien's argument that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose. The  U.S. Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 Amendment was already punishable, since a Selective Service System regulation required registrants to keep their registration certificates in their "personal possession at all times," and willful violation of regulations promulgated under the Act was made criminal by the 1965 Amendment. The court upheld O'Brien's conviction under the Act, which made violation of the nonpossession regulation a lesser included offense of the crime.

Importance of Case

The Court articulated a test to determine whether a regulation that impacts expressive conduct is justified, holding: “We think it clear that 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 not greater than is essential to the furtherance of that interest.” The Court held that the Universal Military Training and Service Act met the conditions of the test and was therefore constitutional.