United States v. O’Brien

391 U.S. 367 (1968)

Quick Summary

David Paul O’Brien (defendant) was prosecuted by the United States Government (plaintiff) for publicly burning his draft card, an action prohibited by federal law. O’Brien claimed this law violated his First Amendment rights. The legal dispute centered on whether prohibiting destruction of draft cards infringed upon free speech.

The Supreme Court upheld O’Brien’s conviction, determining that maintaining draft cards was a valid government interest that did not target free expression. The Court concluded that while expressive acts are protected under the First Amendment, they can be regulated if they interfere with a substantial government interest unrelated to speech suppression.

Facts of the Case

David Paul O’Brien (defendant) and his associates purposefully set their Selective Service registration certificates ablaze on the steps of the South Boston Courthouse, in a public demonstration. This act was in direct defiance of the Universal Military Training and Service Act (UMTSA), which had been amended in 1965 to make it illegal to knowingly destroy or mutilate such certificates.

O’Brien admitted to carrying out the deed as a form of protest against the Vietnam War and the draft, with the intent to persuade others to adopt his anti-war stance. The United States Government (plaintiff) prosecuted O’Brien, arguing that his actions violated federal law.

Despite O’Brien’s defense that the amendment was unconstitutional as it infringed upon his First Amendment rights, the District Court convicted him, stating that the statute did not impinge on free speech and that it was within Congress’s power to legislate for the efficient functioning of the draft system. The decision was later reversed by the Court of Appeals, which deemed the amendment unconstitutional. This led to the Supreme Court’s involvement to resolve the issue.

Procedural Posture and History

  1. O’Brien was indicted and convicted in the United States District Court for the District of Massachusetts for destroying his draft card.
  2. O’Brien appealed his conviction on First Amendment grounds, and the Court of Appeals reversed the decision, declaring the UMTSA unconstitutional.
  3. The United States Government pursued further legal action by taking the case to the Supreme Court after a conflict arose with other circuit court decisions.
  4. The Supreme Court granted certiorari to resolve the differing opinions among the circuits and to address O’Brien’s cross-petition.

I.R.A.C. Format


Whether the 1965 Amendment to the Universal Military Training and Service Act, which prohibits the knowing destruction or mutilation of Selective Service registration certificates, is unconstitutional as it infringes upon free speech rights under the First Amendment.

Rule of Law

A government regulation is justified if it falls within the constitutional power of the Government; furthers an important or substantial government interest; is unrelated to the suppression of free expression; and if any incidental restriction on First Amendment freedoms is not greater than essential to further that interest.

Reasoning and Analysis

The Supreme Court scrutinized whether the 1965 Amendment’s prohibition against destruction or mutilation of draft cards served a legitimate government interest, unrelated to suppressing free speech. The Court recognized Congress’s broad authority to raise armies and found that maintaining draft cards intact was an integral part of an efficient draft system.

The Court determined that O’Brien’s act, while expressive, could be regulated as it had a substantial impact on an unrelated government interest—maintaining an effective draft system. The ruling balanced O’Brien’s First Amendment rights against Congress’s authority and obligation to raise and support armies.

The Court held that while free speech is protected, not all acts of expression are immune from regulation, especially when such acts interfere with a significant government interest that is unrelated to the suppression of speech. Thus, the Court concluded that the 1965 Amendment did not violate O’Brien’s First Amendment rights as it aimed at protecting a critical function of Selective Service System without targeting expression.


The Supreme Court vacated the judgment of the Court of Appeals and reinstated O’Brien’s conviction and sentence from the District Court, affirming the constitutionality of the 1965 Amendment both as enacted and as applied in this case.

Key Takeaways

  1. The Supreme Court holds that not all expressive conduct is protected by the First Amendment if it impedes a significant government interest unrelated to speech suppression.
  2. Regulations that incidentally restrict free speech may be justified if they serve an important or substantial government interest and are no broader than necessary.
  3. The government’s ability to maintain an efficient and effective system for raising armies is a substantial interest justifying regulation of conduct related to draft registration certificates.

Relevant FAQs of this case

What criteria must a government regulation meet to justify restrictions on free speech?

To justify restrictions on free speech, a government regulation must serve an important or substantial government interest, fall within the constitutional power of the government, be unrelated to the suppression of expression, and impose no greater restriction on First Amendment freedoms than is essential to the government’s interest.

  • For example: A law requiring protestors to maintain a certain distance from funeral services would serve the substantial government interest of protecting the privacy and emotional well-being of grieving families while balancing First Amendment rights.

How does the concept of 'content neutrality' affect the legality of a regulation involving expressive conduct?

A regulation involving expressive conduct is more likely to be seen as legal if it is content neutral, meaning that it does not target speech based on its message or viewpoint. The focus of such a regulation should be on managing the secondary effects of conduct, rather than suppressing particular ideas or opinions expressed.

  • For example: A city ordinance prohibiting amplified sound in residential areas at night applies equally to all messages and viewpoints, thereby upholding content neutrality while addressing noise-related public disturbances.

In what scenarios may an individual’s First Amendment rights be outweighed by an important governmental interest?

An individual’s First Amendment rights may be outweighed by an important governmental interest when the expression is conducted in a manner that significantly interferes with key functions of government or poses a clear threat to public safety which cannot be addressed in less restrictive ways.

  • For example: An airport ban on solicitation and distribution of literature in terminals can be justified by the government’s interest in reducing congestion and preventing interference with travel activities.


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