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United States v. O’Brien

Citation. 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, 1968 U.S.
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Brief Fact Summary.

O’Brien (Petitioner) was prosecuted for burning his draft card.

Synopsis of Rule of Law.

When speech and non-speech combine in the same course of conduct, an important governmental interest in regulating the non-speech justifies incidental limitation on speech.


Respondent burned his draft card while standing on the steps of the South Boston Courthouse. Several FBI agents observed the act but did not arrest him. Respondent was eventually convicted of “willfully and knowingly destroying by burning a Selective Service Form.”


Is the federal regulation prohibiting the burning of draft cards an unconstitutional prohibition of “symbolic speech”?


No. Congress has a legitimate interest in preventing the destruction of draft cards as they are used as an identification card and proof of registry.


Selective Service Cards serve as identifiers and a tracker of potential military members. The regulation is justified if it (O’Brien Test): 1) furthers an important or substantial governmental interest; 2) is unrelated to the suppression of free expression; and 3) does not restrict speech any greater than necessary to further the legitimate governmental interest.

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