391 U.S. 367 (1968), argued 24 Jan. 1968, decided 27 May 1968 by vote of 7 to 1; Warren for the Court, Harlan concurring, Douglas in dissent, Marshall not participating. David O’Brien burnt his selective service registration certificate (“draft card”) on the steps of the South Boston Court-house to communicate his antiwar beliefs and was convicted under a federal statute prohibiting the knowing destruction or mutilation of such certificates. He argued that the statute was unconstitutional because it abridged his rights of free speech. The Court rejected O’Brien's claim and set out a test for determining when governmental regulation was justified in freedom of expression cases involving symbolic speech. This test required the government interest to be a valid and important one, and one unrelated to the suppression of free speech. Further, the restriction of First Amendment freedoms could be no greater than was essential to the furtherance of that interest.
The Court found that the statute here met all the requirements. First, the statute involved the broad and sweeping constitutional power to do what was necessary to raise and support an army. Second, the selective service certificate served a number of valid government interests, such as being proof of registration and facilitating communication between the registrant and the local board. These were interests unrelated to the suppression of free speech. Finally, the Court held, the statute was limited to preventing harm to the smooth running of the Selective Service System and no alternative means would accomplish this. By his conduct, O’Brien had frustrated the government's valid interest and it was because of this he was convicted.
The test in O’Brien, which focuses on whether the regulation is unrelated to content and narrowly tailored to achieve the government interest, is frequently invoked not only in symbolic speech cases, but also cases involving time, place, and manner restrictions.
Keith C. Miller