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

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.

Majority

• 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.

Concurrence

• 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.

Dissent

• 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."

Recused

• Thurgood Marshall (Author)

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.