United States v. O'Brien,
391 U.S. 367 (1968)

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U.S. Supreme Court

United States v. O'Brien, 391 U.S. 367 (1968)

United States v. O'Brien

No. 232

Argued January 24, 1968

Decided May 27, 1968*

391 U.S. 367


O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating 50 U.S.C.App. § 462(b), a part of the Universal Military Training and Service Act, 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 Court of Appeals 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," 32 CFR § 1617.1, and willful violation of regulations promulgated under the Act was made criminal by 50 U.S.C.App. § 462(b)(6). The court, however, upheld O'Brien's conviction under § 462(b)(6), which, in its view, made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 Amendment.


1. The 1965 Amendment to 50 U.S.C.App. § 462(b)(3) is constitutional as applied in this case. Pp. 391 U. S. 375, 391 U. S. 376-382.

(a) The 1965 Amendment plainly does not abridge free speech on its face. P. 391 U. S. 375.

(b) 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. P. 391 U. S. 376.

(c) A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers

Page 391 U. S. 368

an important or substantial governmental interest unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest. The 1965 Amendment meets all these requirements. P. 391 U. S. 377.

(d) The 1965 Amendment came within Congress'."broad and sweeping" power to raise and support armies and make all laws necessary to that end. P. 391 U. S. 377.

(e) The registration certificate serves purposes in addition to initial notification, e.g., it proves that the described individual has registered for the draft; facilitates communication between registrants and local boards, and provides a reminder that the registrant must notify his local board of changes in address or status. The regulatory scheme involving the certificates includes clearly valid prohibitions against alteration, forgery, or similar deceptive misuse. Pp. 391 U. S. 378-380.

(f) The preexistence of the nonpossession regulation does not negate Congress' clear interest in providing alternative statutory avenues of prosecution to assure its interest in preventing destruction of the Selective Service certificates. P. 391 U. S. 380.

(g) The governmental interests protected by the 1965 Amendment and the nonpossession regulation, though overlapping, are not identical. Pp. 391 U. S. 380-381.

(h) The 1965 Amendment is a narrow and precisely drawn provision which specifically protects the Government's substantial interest in an efficient and easily administered system for raising armies. Pp. 391 U. S. 381-382.

(i) O'Brien was convicted only for the willful frustration of that governmental interest. The noncommunicative impact of his conduct for which he was convicted makes his case readily distinguishable from Stromberg v. California, 283 U. S. 359 (1931). P. 391 U. S. 382.

2. The 1965 Amendment is constitutional as enacted. Pp. 391 U. S. 382-385.

(a) Congress' purpose in enacting the law affords no basis for declaring an otherwise constitutional statute invalid. McCray v. United States, 195 U. S. 27 (1904). Pp. 391 U. S. 383-384.

(b) Grosjean v. American Press Co., 297 U. S. 233 (1936) and Gomillion v. Lightfoot, 364 U. S. 339 (1960), distinguished. Pp. 391 U. S. 384-385.

376 F.2d 538, vacated; judgment and sentence of District Court reinstated.

Page 391 U. S. 369

Primary Holding

Since the government has an important interest in an effective draft system, the First Amendment does not void a law against burning draft cards, especially since the act of burning a draft card does not implicate a substantial speech interest.


Congress amended the Universal Military Training and Service Act (Selective Service Act) in 1965 to prevent people from intentionally destroying draft cards, which contained information on registrants for the draft such as their Selective Service numbers. This likely was a response to the frequent public burnings of draft cards as a form of protest during the Vietnam War.

David O'Brien and three other young men publicly burned their draft cards on the steps of the South Boston Courthouse on March 31, 1966. The observers of this protest included FBI agents, one of whom took O'Brien inside the courthouse when some of the spectators began to attack the draft burners. Since O'Brien acknowledged his actions and showed the burned card to the agent, he was charged with violating the provision against destroying draft cards. He used his trial as a vehicle to convey his anti-war views to the public and argue that banning the burning of draft cards infringed on free speech. However, O'Brien was convicted and sentenced to six years of custody as a youth offender.

Procedural History

US Court of Appeals for the First Circuit - 376 F.2d 538 (1st Cir. 1967)

Sentence vacated and remanded. The provision of the Selective Service Act banning the burning of draft cards is unconstitutional, so a conviction under it may not be sustained. However, the defendant violated a separate, constitutional provision of the Selective Service Act banning the non-possession of draft cards. The case was remanded to adjust the sentence in accordance with a conviction under that provision.



  • Earl Warren (Author)
  • Hugo Lafayette Black
  • John Marshall Harlan II
  • William Joseph Brennan, Jr.
  • Potter Stewart
  • Byron Raymond White
  • Abe Fortas

Finding that a statute could be constitutional even if the motive in passing it was improper, such as quelling protest, Warren showed deference to the legislature in the sphere of military service. He observed that the law covered conduct rather than speech, which meant that the Court should review it more leniently. Expressive conduct that has a symbolic meaning still may be protected by the First Amendment, but the standard of review requires only an important governmental interest that is content-neutral, is not independently unconstitutional, and does not infringe on more speech than is needed to pursue the government's interest. Technically, this section of the opinion may not have had precedential value, for Warren was unsure whether O'Brien's actions even qualified as expressive conduct. But this became the standard used to evaluate First Amendment challenges on such a basis moving forward.

Warren was not persuaded that the draft cards were arbitrary, unnecessary pieces of paperwork that served no practical purpose. He felt that they helped the draft process function more smoothly and that Congress should have substantial discretion in the measures that it took to facilitate raising an army. O'Brien was free to verbally criticize the use of draft cards, but burning them directly frustrated the government's interest in keeping draft cards available. The government had no meaningful alternative way to assure their continued use if they were destroyed.


  • John Marshall Harlan II (Author)

In an extension to the majority's standard, Harlan argued that the First Amendment should cover situations when a law entirely prevented a speaker from reaching a significant audience by denying the speaker any other lawful means of communication. This was clearly not O'Brien's situation, so it was not relevant to the outcome in this case. However, later decisions would adopt Harlan's concern that ample alternative channels of communication must exist.


  • William Orville Douglas (Author)

Accepting the standard laid out by the majority, Douglas felt that the government did not have an important interest in draft cards unless war had been declared by Congress. The Vietnam War never had been officially declared, so he did not see it as a "war" within the proper definition of the term. Douglas argued that a draft might not be appropriate in "peacetime."


  • Thurgood Marshall (Author)

Case Commentary

This was one of the earliest occasions on which the Court considered symbolic speech or expressive conduct under the First Amendment. It receives constitutional protections as well, but usually the government action affecting it must meet a lower burden of proof to be valid.

Ironically, this decision had minimal effect on the burning of draft cards, which continued to be a popular form of public protest. This is no longer the case, however, and the provision banning this conduct remains in effect. The Selective Service Act has sustained most challenges to other provisions, and males between 18 and 25 are required to register in the event that there may be a draft.

The "intermediate scrutiny" standard used in O'Brien was narrowed somewhat in other cases that examined whether the alleged government interest justified the scope of the restriction on expressive conduct. In case such as Texas v. Johnson (1989), for example, the Court found that the First Amendment protected burning the American flag, which does not seem far removed from burning a draft card. On the other hand, the Court has required only a reasonable connection between the government interest and the means used to further it. Cases that apply intermediate scrutiny, which also includes review of time, place, and manner restrictions, continue to be unpredictable.

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