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United States v. O’Brien

    Citation. 22 Ill.391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)

    Brief Fact Summary. The Defendant, O’Brien (Defendant), burned his selective service registration certificate and was convicted of violating a federal statute making it a crime to mutilate the certificate. The Defendant appealed, noting that his act was “symbolic speech” and should fall under the protection of the First Amendment of the United States Constitution (Constitution).

    Synopsis of Rule of Law. This case is the basis for the O’Brien test: 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 the limitations on First Amendment speech. A governmental regulation is sufficiently justified (1) if it is within the constitutional power of the government; (2) if it furthers governmental interest, which is (3) unrelated to the suppression of free expression and (4) if the government’s interest outweighs the suppression of speech.


    Facts. The District Court convicted the Defendant for violating the statute, and the Court of Appeals Reversed. The Supreme Court of the United States (Supreme Court) granted certiorari.

    Issue. This case considers whether symbolic speech may be suppressed when the actions done in furtherance of the speech are contrary to governmental interest.

    Held. Reversed.
    The Supreme Court found that the governmental interest in preserving selective service registration cards outweighed Defendant’s interest in making his symbolic speech and that Congress had a legitimate and substantial interest in preventing the destruction of these cards. Further the court notes that unrestrained destruction of the cards would disrupt the functioning of the selective service system, which was a greater problem than the abridgment of Defendant’s rights.

    Dissent. Judge William Douglas (J. Douglass) found that the Defendant’s conviction was not consistent with the First Amendment, if his speech did not significantly disrupt the rights of others or the interest of the government in regulating selective service.

    Discussion. When considering suppression of symbolic speech, the interest of the government may be taken into consideration, if it outweighs the protection afforded by the First Amendment of the Constitution.


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