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United States v. O’Brien

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

O’Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was later convicted under a federal law that made the destruction or mutilation of drafts card a crime.

Synopsis of Rule of Law.

A prohibition against destruction of a draft card does not violate the First Amendment’s guarantee of free speech.


On March 31, 1966, O’Brien and three of his companions burned their respective draft cards outside a Boston courthouse. A crowd, including several FBI agents were present and witnessed this happening. O’Brien told FBI agents he burned his draft card knowing that he was violating federal law. O’Brien was subsequently convicted in federal court under a federal law that criminalized the destruction or mutilation of draft cards. O’Brien argued that the federal law is unconstitutional as applied to him because his act of burning his draft card was protected symbolic speech within the First Amendment.


Is the federal law an unconstitutional infringement of O’Brien’s freedom of speech under the First Amendment?


No, the federal law is not an unconstitutional infringement of O’Brien’s freedom of speech.


Justice Douglas

Justice Douglas believed that the asserted government interest was only valid when the nation was in a state of war as declared by Congress.


Justice Harlan

Justice Harlan wished to extend First Amendment protection to instances in which, though the majority’s test was satisfied, the regulation at issue additionally had the effect of entirely preventing a speaker from reaching a significant audience with whom he could not otherwise lawfully communicate. Justice Harlan felt that O’Brien had other means by which he could communicate his message, and thus he had no problem affirming his conviction.


The federal law at issue does not distinguish between public and private destruction and does not only punish destruction engaged in for the purpose of expressing views. As such, this law prohibiting destruction of draft cards no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a tax law prohibiting the destruction of books and records.

Even if the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment as symbolic speech, it doesn’t necessarily follow that the destruction of a draft card is constitutionally protected activity. When symbolic speech is involved, it is necessary to examine whether the regulation is unrelated to content and narrowly tailored to achieve an important governmental interest. Here, the federal law is justified by an important government interest unrelated to the suppression of speech and is tailored toward that end.

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