| United States v. O'Brien | |
|---|---|
 | |
| Argued January 24, 1968 Decided May 27, 1968 | |
| Full case name | United States v. David Paul O'Brien |
| Citations | 391 U.S. 367 (more) 88 S. Ct. 1673; 20 L. Ed. 2d 672; 1968 U.S. LEXIS 2910 |
| Case history | |
| Prior | Defendant convicted, D. Mass.; conviction affirmed, sentence vacated and remanded, 376 F.2d 538 (1st Cir. 1967); rehearing denied, 1st Cir., 4-28-67; cert. granted, 389 U.S. 814 (1967). |
| Subsequent | Rehearing denied, 393 U.S. 900 (1968). |
| Holding | |
| A criminal prohibition against burning draft cards did not violate the First Amendment, because its effect on speech was only incidental, and it was justified by the significant government interest in maintaining an efficient and effective military draft system. First Circuit Court of Appeals vacated and remanded. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Warren, joined by Black, Harlan, Brennan, Stewart, White, Fortas |
| Concurrence | Harlan |
| Dissent | Douglas |
| Marshall took no part in the consideration or decision of the case. | |
| Laws applied | |
| U.S. Const. art. I; U.S. Const. amend. I; 50 U.S.C. § 462(b)(3) (1965 amendment to the Universal Military Training and Service Act of 1948) | |
United States v. O'Brien, 391 U.S. 367 (1968), was a landmark decision of the United States Supreme Court, ruling that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Though the court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest unrelated to the suppression of speech and was tailored towards that end.
O'Brien upheld the government's power to prosecute what was becoming a pervasive method of anti-war protest. Its more significant legacy, however, was its application of a new constitutional standard. The test articulated in O'Brien has been subsequently used by the court to analyze whether laws that have the effect of regulating speech, though are ostensibly neutral towards the content of that speech, violate the First Amendment. Though the O'Brien test has rarely invalidated laws that the court has found to be "content neutral", it has given those engaging in expressive conduct—from wearing of black armbands to burning of flags— an additional tool to invoke against prohibitions.