United States v. O'Brien

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United States v. O'Brien
Court Supreme Court of the United States
Date decided May 27, 1968
Appealed from 1st Circuit


In the 1960s, draft-card burning was seen as a form of symbolic resistance speech by the opponents of the Vietnam War.

The Selective Service System (SSS) issued draft cards to young men who had registered.

O'Brien publicly burned his draft card as symbolic speech on the steps of a Boston courthouse.

Procedural History

O'Brien is prosecuted in the District of Massachusetts federal court. O'Brien is criminally convicted.

The 1st Circuit upholds O'Brien's conviction.


What are the First Amendment protections when it comes to expressive conduct (conduct that is a form of speech) ?


Congress may constitutionally prohibit the destruction of draft cards.


O'Brien test centers on whether a governmental regulation:

(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.