United States v. O’Brien

Facts of the Case

On the morning of March 31, 1966, Defendant and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. An FBI agent ushered Defendant to safety inside the courthouse. After he was advised of his right to counsel and to silence, Defendant stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. Defendant produced the charred remains of the certificate, which, with his consent, were photographed. Defendant was convicted and sentenced after he publicly burned his registration certificate in an attempt to influence others to adopt his antiwar beliefs. Defendant argued that application of the amendment to the Universal Military Training and Service Act was unconstitutional in its application and as enacted because of Congress’ alleged purpose to suppress freedom of speech. The Court held that a sufficient governmental interest justified the conviction because of the government’s substantial interest in assuring the continuing availability of issued Selective Service certificates, because the amendment condemned only the independent noncommunicative impact of conduct within its reach, and because the noncommunicative impact of defendant’s act frustrated the government’s interest.


Was the law an unconstitutional infringement of O’Brien’s freedom of speech?


No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government’s interest. [W]e think it clear, wrote Warren, that a government regulation is sufficiently justified if it is within the constitutional power of the Government