U.S. v. O'Brien
391 U.S. 367 (1968)

Facts: 1965 amendment to the 1948 Universal Military Service and Training Act made it illegal to "knowingly forge, alter, destroy, mutilate, or in any manner change" one's Selective Service certificate (aka a draft card).

Lower Court ruling: The 1st Circuit Court of Appeals found the 1965 amendment an unconstitutional violation of freedom of speech, but the Circuit Court affirmed O'Brien's conviction under the "non-possession" portion of the 1948 law. Both the government and O'Brien appealed.

Questions for the Court to resolve:

1. Does protecting the physical integrity of the draft card (the card itself and the information on it) violate an individual's freedom to speak symbolically?
2. Can the government legally require a young man to be in possession of his draft card at all times?

Court Ruling: 7-1 for U.S. C.J. Warren wrote the opinion.

1. The 1965 amendment is not "facially invalid."

2. The 1965 amendment does not punish only that destruction that expresses a viewpoint.

3. Just because an idea is involved does not make "conduct" into "speech."

4. Government can regulate non-speech elements (conduct) even when it involves incidental limitation of protected speech. The new test is:

A government regulation of symbolic speech is justified:

• if it is within the constitutional power of the government;
• if it furthers an important or substantial governmental interest;
• if the governmental interest is unrelated to the suppression of free expression; and
• if the incidental restriction on alleged First Amendment freedoms is no greater than what is essential to the furtherance of the governmental interest.

5. Forcing young men to have their draft cards in their possession at all times is justified because:

• It proves he registered for the draft;
• It facilitates communication with his draft board;
• It carries notification of change of address reminders; and
• It prevents misuse and fraud.
  

Dissenting opinion: Justice Douglas
A draft is not permissible without a declaration of war. Even though this was not argued by O'Brien, the country is entitled to an answer by the Court. All cases involving opposition to the conflict in Vietnam should be combined with this case and re-argued next term on the larger questions.

Rule: The government can regulate symbolic speech as long as the new test is followed.

The O'Brien Test
(From U.S. v. O'Brien, 391 US 367 [1968])

A government regulation of symbolic speech is justified:

• if it is within the constitutional power of the government;
• if it furthers an important or substantial governmental interest;
•  if the governmental interest is unrelated to the suppression of free expression; and
• if the incidental restriction on alleged First Amendment freedoms is no greater than what is essential to the furtherance of the governmental interest.