Library of Congress: Young man wearing helmet with peace sign, burns his draft card at an anti-draft demonstration at the Selective Service System headquarters, 1724 F St. N.W., Washington, D.C.

United States v. O’Brien

By May 27, 1968

In United States v. O’Brien, the Supreme Court upholds the conviction of David Paul O’Brien, an anti-war protester accused of violating a federal statute prohibiting the public destruction of draft cards. O’Brien claims that the burning of draft cards is “symbolic speech” protected by the First Amendment. The Court concludes that conduct combining “speech” and “non-speech” elements can be regulated if the following four requirements are met: (1) the regulation is within the constitutional power of the government; (2) it furthers an “important or substantial” government interest; (3) the interest is “unrelated to suppression of free expression;” and (4) “incidental restriction” on First Amendment freedoms is “no greater than is essential to the furtherance” of the government interest. The Court concludes that all requirements were satisfied in this case.

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