When a man turned 18, he was
required to register for the draft. He was given a certificate (aka a
draft card) with his draft status on it.
In order to protest the
Vietnam War and the draft, O'Brien and 3 other guys publicly burned their
draft cards. They were arrested.
There was a Federal law (50
U.S.C. 462(b)) making it a crime for
anyone to forge, alter or destroy a draft card.
The Trial Court found O'Brien
guilty of destroying his draft card and was sentenced to 6 years in
prison. He appealed.
O'Brien claimed that his
actions were covered under the 1st Amendment's right to free speech, and so
the law was unconstitutional.
The prosecutor argued that
the law had nothing to do with free speech, it was about maintaining important government records.
The prosecutor also argued
that burning a draft card wasn't speech.
The Appellate Court reversed
and overturned the conviction, the prosecutor appealed.
The US Supreme Court reversed
and upheld the conviction.
The US Supreme Court
acknowledged O'Brien's claim that his symbolic gesture was a form of speech.
The US Supreme Court
developed a 3-part test (now known as the O'Brien Test) to determine if a government regulation is
sufficiently justified to warrant an infringement on the 1st
Does it further an
important or substantial governmental interest,
Aka is there a compelling
Is the governmental
interest unrelated to the suppression of free expression, and
Aka is it content
Is the incidental
restriction on alleged 1st Amendment freedoms not greater than is essential to
the furtherance of that interest?
Aka is it narrowly
In this case, the Court
found that the law did not violate the 1st Amendment because its effect on speech was only
incidental, and it was justified by the compelling government interest
in maintaining an efficient and effective military draft system.
Although, a look at the
legislative history of 50 U.S.C. 462(b) implies that the congressional intent was to punish people who
were burning their draft cards, not to maintain an efficient draft
Basically, this case says that
any conduct which communicates is
theoretically covered by the 1st Amendment.
However, that does not mean that it is immune from government regulation.
But the Court will apply
essentially a strict scrutiny