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