Global Freedom of Expression

United States v. O’Brien

Closed Contracts Expression

Key Details

  • Mode of Expression
    Non-verbal Expression, Public Speech
  • Date of Decision
    May 27, 1968
  • Outcome
    Reversed Lower Court, Law or Action Upheld, Imprisonment, Criminal Sanctions
  • Case Number
    391 U.S. 367
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Freedom of Association and Assembly / Protests, Political Expression
  • Tags
    Public Order, Indirect Censorship

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Case Analysis

Case Summary and Outcome

The Supreme Court upheld a conviction for burning a military draft registration certificate on the steps of a courthouse. The case was brought by David Paul O’Brien who was criminally convicted for burning his military draft certificate on the steps of the South Boston Courthouse. His actions violated Section 462 of the Universal Military Training and Service Act of 1948, which made it illegal to forge, alter, change, destroy, or mutilate registration certificates. The Court reasoned, by means of a test, that government regulation was justified because it was within the constitutional power of the Government, furthered an important or substantial governmental interest, and was unrelated to the suppression of free expression.


David Paul O’Brien (O’Brien) and three other people burned their registration certificates for the Selective Service in front of the South Boston Courthouse on March 31, 1966. A sizable crowd that witnessed the card-burning demonstration “began attacking O’Brien and his companions.” (at 369.) O’Brien told an FBI agent that “he had burned his registration certificate because of his beliefs.” The United States was involved in the Vietnam War at the time of O’Brien’s demonstration, and the burning of Selective Service registration certificates (or “draft cards”) was a common form of protest.

The Selective Service is a United States government agency that registers and maintains information on people (mostly men) eligible for conscription into the armed forces, such as via a military draft. Men are required to register with their local draft board upon reaching the age of 18. Two important documents related to the administration of the Selective Service are the registration certificate and the classification certificate. The registration certificate is issued soon upon registration, and contains the individual’s Selective Service identification number. The classification certificate denotes eligibility for conscription or the draft. Both certificates have information important to the administration and management of the Selective Service.

Section 462 of the Universal Military Training and Service Act of 1948 made it illegal to forge, alter, or change Selective Service registration certificates. In 1965, Congress amended this section to further forbid knowingly destroying or mutilating registration certificates (“Section 462” or the “card-destruction statute”). There was also a regulation subject to criminal felony penalties which required Selective Service registrants to have both certificates “in their personal possession at all times.”

For burning his registration certificate, O’Brien faced criminal penalties. The United States District Court for the District of Massachusetts indicted, tried, convicted, and sentenced O’Brien under Section 462. O’Brien argued to the jury that he had publicly burned his registration certificate to “influence others to adopt his antiwar beliefs … so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.” (at 370.) O’Brien further argued that the law was unconstitutional “because it was enacted to abridge free speech, and because it served no legitimate legislative purpose.” (at 370.)

The district court sentenced O’Brien “to the custody of the Attorney General for a maximum period of six years for supervision and treatment.” (at 369-70 n.2.) On appeal, the First Circuit Court of Appeals held the card-destruction statute unconstitutional for abridging free speech in violation of the First Amendment of the United States Constitution. There was also a secondary dispute concerning conviction under the regulation requiring personal possession of registration certificates at all times. The U.S. government petitioned for certiorari, which the Supreme Court granted.

Decision Overview

Chief Justice Warren delivered the opinion of the United States Supreme Court. O’Brien argued that the card-destruction statute was unconstitutional as applied to him as restricting protected “symbolic speech,” and alternatively that the purpose or motivation of Congress’s prohibition on destroying cards was an unlawful suppression of speech.

First, the Court considered whether the card-destruction statute was an unconstitutional restriction on symbolic speech. On its face, the statute does not restrict speech itself. The statute bans forging, altering, destroying, and mutilating Selective Service registration certificates, making no mention of any manner of speaking. Enforcement of the statute is also unaffected by any potentially expressive content in the destruction of registration cards; it is applied indiscriminately. O’Brien argued that symbolic speech, the “communication of ideas by conduct,” is protected, and that he was communicating his objections to the military draft by his public burning of his registration certificate.

Although the Court conceded that symbolic speech is protected to an extent, it could not “accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” (at 376.) Supreme Court jurisprudence demonstrated that “that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” (at 376.) Although the Court’s characterization of the interest the government must demonstrate has varied from “compelling,” to “substantial,” “paramount,” and “cogent,” the Court found “it clear that a government regulation is sufficiently justified 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 alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (at 376-77.)

According to the Court, the creation of Selective Service was clearly within Congress’s power to raise and support armies, which it found “broad and sweeping.” (at 377.) Further, the second factor was met because the “issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this [registration] system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system’s administration.” (at 377-78.) Summarily, the Court characterized the government’s interest as “substantial.” (at 381.)

To satisfy the third requirement, the government’s interest in the smooth functioning of the Selective Service had nothing to do with suppressing speech. Again, the enforcement of the card-destruction statute was not inherently related to speech, but strictly related to non-communicative conduct. Finally, the law was sufficiently narrowly drawn to preserve the availability and integrity of the certificates maintaining the Selective Service system. The destruction or mutilation of certificates would frustrate or defeat the purpose of the registration system implemented by the Selective Service. Furthermore, requirements that registrants have the certificates in their possession at all times were insufficient to preserve these important documents: “the essential elements of nonpossession are not identical with those of mutilation or destruction,” “they protect overlapping but not identical governmental interests, and … they reach somewhat different classes of wrongdoers.” (at 380-81.)

Basically, the ban on conduct regulated by the card-destruction statute was necessary to ensure a smooth functioning of the registration system. In conclusion, the law was an appropriately narrow tool to protect the government’s sufficient and “substantial interest in assuring the continuing availability of issued Selective Service certificates.” Because it met all four requirements, the law was a permissible regulation on symbolic speech and did not overly burden O’Brien’s expressive conduct.

O’Brien’s second argument was that the card-destruction statute was unconstitutional because the purpose was to suppress the freedom of speech. However, the Court held that it is “a familiar principle of constitutional law that [the U.S. Supreme] Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” (at 383.) The courts may look to legislative history and intent when interpretation of the law is at issue. But in O’Brien’s case, the interpretation of the card-destruction statute was straight-forward. For this reason, the purpose of the 1965 amendment was irrelevant, though the Court indicated there was scant evidence supporting O’Brien’s argument that the motivation of the statute was to suppress speech.

Because the card-destruction statute met all four requirements for laws that indirectly impact symbolic speech, and because the motivation for the statute is largely irrelevant under U.S. principles of judicial review, the Court upheld O’Brien’s conviction. The Court vacated the judgment of the Court of Appeals, and reinstated the district court’s conviction of O’Brien under the card-destruction statute. Because of its ruling, the Court did not consider the secondary argument regarding the possession regulation.

Justice Marshall took no part in the consideration of the case.

Justice Harlan wrote a concurring opinion to clarify that the four-prong O’Brien test does not prevent review in cases in which a speaker is effectively prevented from reaching a significant audience.

Justice Douglas wrote a dissenting opinion. He did not dispute the validity of the O’Brien test, or most of the Court’s application of that test. Justice Douglas primarily argued that the Court should request reargument from the government and O’Brien to discuss the constitutionality of a peacetime draft when there has been no declaration of war from Congress (as there had not been in the ongoing Vietnam War). The Court’s decision on that issue would impact the breadth of Congress’s powers to raise and support armies, and thus the Court’s interpretation of the first prong of the O’Brien test.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

O’Brien set forth the test under which laws indirectly restricting symbolic speech are evaluated under the United States Constitution. The test permits laws burdening expressive conduct as long as they are narrowly tailored to further a substantial governmental interest.

The case did not necessarily shift the law drastically in one direction or another. However, it did uphold a law under which a young man was convicted for burning his Selective Service registration certificate, a prevalent political protest during the Vietnam War and a powerfully symbolic anti-war statement. Even if it is true that the prohibition on the mutilation or destruction of draft cards is appropriately drawn to further the government’s important interest in a smoothly functioning draft registration system, the outcome of the case restricts symbolic speech and contracts expressive conduct.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Stromberg v. California, 283 U.S. 359 (1931)
  • U.S., NAACP v. Button, 371 U.S. 415 (1963)
  • U.S., Sherbert v. Verner, 374 U.S. 398 (1963)
  • U.S., NAACP v. Alabama, 357 U.S. 449 (1958)
  • U.S., Thomas v. Collins 323 U.S. 516 (1945)
  • U.S., Grosjean v. American Press Co., 297 U.S. 233 (1936)
  • U.S., Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
  • U.S., Musser v. Utah, 333 U.S. 95 (1948)
  • U.S., Bates v. Little Rock, 361 U. S. 516 (1960)
  • U.S., Milanovich v. United States, 365 U.S. 551 (1961)
  • U.S., Heflin v. United States, 358 U.S. 415 (1959)
  • U.S., Prince v. United States, 352 U.S. 322 (1957)
  • U.S., Lichter v. United States, 334 U.S. 742 (1948)
  • U.S., Selective Draft Law Cases, 245 U.S. 366 (1918)
  • U.S., Ex parte Quirin, 317 U.S. 1 (1942)
  • U.S., Gore v. United States, 357 U.S. 386 (1958)
  • U.S., NLRB v. Fruit & Vegetable Packers, 377 U.S. 58 (1964)
  • U.S., McCray v. United States, 195 U.S. 27 (1904)
  • U.S., Arizona v. California, 283 U.S. 423 (1931)
  • U.S., Gomillion v. Lightfoot, 364 U.S. 339 (1960)
  • U.S., United States v. Lovett, 328 U.S. 303 (1946)
  • U.S., Trop v. Dulles, 356 U.S. 86 (1958)
  • U.S., Sherman v. United States, 356 U.S. 369 (1958)
  • U.S., Abel v. United States, 362 U.S. 217 (1960)
  • U.S., Lustig v. United States, 338 U.S. 74 (1949)
  • U.S., Weeks v. United States, 232 U.S. 383 (1914)
  • U.S., Byars v. United States, 273 U.S. 28 (1927)
  • U.S., Wolf v. Colorado, 338 U.S. 25 (1949)
  • U.S., Donaldson v. Read Magazine, 333 U.S. 178 (1948)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

U.S. Supreme Court cases are binding and mandatory authority on all lower courts in the United States. That it was a 7-1 decision in favor of the government enhances the persuasive authority espoused by the Court.

The decision was cited in:

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