Facts
- David Paul O’Brien and three others burned their Selective Service registration certificates on the steps of a South Boston courthouse in March 1966 as an antiwar protest.
- O’Brien acted to express opposition to the Vietnam War and to influence others to adopt similar views.
- He was prosecuted under a 1965 amendment to § 462(b)(3) of the Universal Military Training and Service Act criminalizing the knowing destruction or mutilation of Selective Service certificates.
- A federal district court convicted O’Brien and rejected his First Amendment challenge.
- The First Circuit held the 1965 amendment unconstitutional under the First Amendment but nonetheless upheld the conviction under a different subsection as a lesser-included offense.
- The Supreme Court granted review due to disagreement among circuits on the amendment’s validity.
Issues
- Whether the 1965 amendment prohibiting knowing destruction or mutilation of draft cards is unconstitutional on its face under the First Amendment.
- Whether applying the amendment to O’Brien’s draft-card burning as political protest violates the First Amendment.
- Whether the amendment is invalid because Congress allegedly enacted it to suppress antiwar expression.
Decision
- The Supreme Court (7–1) upheld the 1965 amendment as constitutional on its face and as applied to O’Brien.
- The Court vacated the First Circuit’s judgment and reinstated the district court’s judgment and sentence.
- The Court held that the statute regulated conduct in noncommunicative terms and that any burden on expression was incidental.
- The Court declined to invalidate an otherwise constitutional statute based on asserted improper legislative motive.
Legal Principles
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When conduct combines “speech” and “nonspeech” elements, an important governmental interest in regulating the nonspeech element may justify incidental limits on First Amendment freedoms.
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A government regulation that incidentally burdens expressive conduct is sufficiently justified if:
- it is within the government’s constitutional power;
- it furthers an important or substantial governmental interest;
- the interest is unrelated to the suppression of free expression; and
- the incidental restriction on First Amendment freedoms is no greater than essential to further that interest.
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Congress may protect the administrative functioning of the Selective Service System by prohibiting destruction of draft cards, which serve as proof of registration and tools for classification and communication.
Conclusion
The Court held that prohibiting destruction of Selective Service certificates validly served a substantial, content-neutral governmental interest in maintaining the draft system and only incidentally burdened expression, establishing the four-part standard for reviewing regulations of expressive conduct.