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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. 2910.
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Brief Fact Summary.

On the morning of March 31, 1966, the Respondents, David Paul O’Brien (O’Brien) and three companions (Respondents), burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizeable crowd, including several agents of the Federal Bureau of Investigation (FBI), witnessed the event. Immediately after the burning, O’Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law.

Synopsis of Rule of Law.

A governmental regulation is sufficiently justified if it: (1) is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression and (4) if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest.


For the burning, O’Brien was indicted, tried, convicted and sentenced. O’Brien stated that he burned the certificate publicly to influence others to adopt his anti-war beliefs. The indictment upon which he was tried charged that he “willfully and knowingly did mutilate, destroy and change by burning his registration certificate in violation of Section:462(b)(3) of the Universal Military Training and Service Act.” This section was amended in 1965 so that at the time O’Brien burned his certificate an offense was committed by any person, “who forges, alters, knowingly destroys, knowingly mutilates or in any manner changes such certificate.” The Court of Appeals held the 1965 Amendment unconstitutional as a law abridging freedom of speech.


Is the 1965 Amendment unconstitutional as applied to O’Brien because his act of burning the registration certificate was protected “symbolic speech” within the First Amendment of the United States Constitution (Constitution)?


The 1965 Amendment meets all of the requirements vis-

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