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United States v. O’Brien

Citation. 391 U.S. 367 (1968)
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Brief Fact Summary.

Respondent O’Brien argued that the law at issue is unconstitutional as applied to him because his act of burning his registration certificate was protected “symbolic speech” within the First Amendment.

Synopsis of Rule of Law.

When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on the First Amendment freedoms.


In 1966, David O’Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. For this act, O’Brien was indicted, tried, and convicted and sentenced in the United States District Court for the District of Massachusetts. He did not contest the fact that he burned the certificate. He stated that he burned it publicly to influence others to adopt his antiwar beliefs so that other people would reevaluate their positions with Selective Service, with the armed forces. O’Brien was charged with violating the Universal Military Training and Service Act of 1948 that criminalizes a person who forces, alters, knowingly destroys any certificate.


Does the Universal Military Training and Service Act of 1948 that criminalizes a person who forces, alters, knowingly destroys any registration certificate violate the First Amendment?


No, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. Further, the governmental regulation at issue is within the constitutional power of the government and furthers an important and substantial governmental interests.


The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. The power of Congress to classify and conscript manpower for military service is beyond question. Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service and may require individuals within reason to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. The registration certificate serves as proof that the individual has registered the draft. The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and willfully destroy or mutilate them.

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