United States v. O'Brien 1968

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United States v. O'Brien 1968

Petitioner: United States of America

Respondent: David Paul O'Brien

Petitioner's Claim: That a federal law prohibiting the destruction of draft cards did not violate the freedom of speech.

Chief Lawyer for Petitioner: Erwin N. Griswold, U.S. Solicitor General

Chief Lawyer for Respondent: Marvin M. Karpatkin

Justices for the Court: Hugo Lafayette Black, William J. Brennan, Jr., Abe Fortas, John Marshall Harlan II, Potter Stewart, Earl Warren, Byron R. White

Justices Dissenting: William O. Douglas (Thurgood Marshall did not participate)

Date of Decision: May 27, 1968

Decision: The Supreme Court upheld the federal statute and O'Brien's conviction for violating it.

Significance: O'Brien limited protection for symbolic speech under the First Amendment.

The Vietnam War, which lasted from 1955 until 1974, was a battle between North and South Vietnam. North Vietnam wanted to unite the country under communism. South Vietnam resisted with help from the United States. By the end of 1965, there were 180,000 American troops fighting in Vietnam.

Although the war was ten years old in 1965, there was no sign that North Vietnam would be defeated. Many Americans became opposed to the war. Some thought a civil war in Vietnam was not America's concern. They were angry to see young Americans die while fighting for another country. Others were generally opposed to human beings killing each other. Protests against the war became common in America. In United States v. O'Brien, the U.S. Supreme Court had to decide whether one form of protest—burning draft cards—was protected by the freedom of speech.

Burning mad

The United States built an army to fight in Vietnam using the Selective Service System. It required all American males to register with a local draft board when they reached the age of eighteen. Each young man received a registration certificate and a classification certificate. The certificates were commonly called draft cards. They contained important information, including a reminder that registrants had to notify their local draft board of address changes. The local draft boards used the addresses to notify young men when they had been selected, or drafted, to fight in Vietnam.

On March 31, 1966, David Paul O'Brien and three other men burned their draft cards on the steps of the South Boston Courthouse. They did so to protest against the Vietnam War and the military draft. A crowd of citizens, including agents from the Federal Bureau of Investigation (FBI), watched the event. Immediately after the burning, angry members of the crowd attacked O'Brien and his companions.

An FBI agent rushed O'Brien to safety inside the courthouse. The agent then arrested O'Brien for violating a federal law that made it a crime to destroy draft cards. O'Brien admitted he had violated the federal law because of his beliefs.

The United States charged O'Brien with violating the federal law. At his trial, O'Brien told the jury he burned his draft card to convince others to adopt his anti-war beliefs. He said burning his draft card was "symbolic speech." (Symbolic speech conveys an idea or message with symbols or actions instead of words.) O'Brien argued that convicting him for using symbolic speech would violate his freedom of speech.

The district court rejected this argument and the jury found O'Brien guilty. On appeal, however, the U.S. Court of Appeals for the First Circuit reversed the conviction. It said the federal law violated the freedom of speech. The United States took the case to the U.S. Supreme Court.

Cooler heads prevail

With a 7–1 decision, the Supreme Court ruled in favor of the United States. Writing for the Court, Chief Justice Earl Warren applied the First Amendment, which says "Congress shall make no law . . . abridging [limiting] the freedom of speech." Justice Warren said the freedom of speech did not give O'Brien the right to burn his draft card.

Warren explained that only pure speech gets full protection under the First Amendment. By contrast, O'Brien's protest involved both "speech" and "conduct." The speech part was whatever O'Brien meant to say in protest against the Vietnam War. The conduct part was burning the draft card. Warren said the federal government can limit the "conduct" part of speech if it satisfies a two part test. First, it must have a substantial interest in limiting the speech. Second, it must interfere with the "speech" as little as necessary.

Under this test, the federal law making it a crime to destroy draft cards did not violate the First Amendment. The U.S. Constitution gives the federal government the power to raise an army to fight in wars. Using the Selective Service System to raise an army for the Vietnam War was an appropriate exercise of that power. This meant the government had a substantial interest in making sure that draft cards were handled properly and not misused. Otherwise it might have problems building an army for the Vietnam War.

The federal law also satisfied the second part of the test. It interfered with pure speech as little as necessary to serve the government's interest in building an army. Protestors still could speak against the Vietnam War and the military draft using words and other symbols other than burning draft cards. Because the federal law did not violate the freedom of speech, O'Brien's conviction was valid.


Soon after O'Brien, the United States began to withdraw troops from Vietnam. Protestors, however, continued to burn their draft cards. In all there were 31,831 reported violations ending in just 544 imprisonments. Then in 1973 the United States ended the draft and established an all volunteer army. North Vietnam ultimately won the war in 1974 and united the country under communism in 1976. Meanwhile in America, O'Brien continues to limit First Amendment protection of symbolic speech that the government calls "conduct."


E arl Warren, who wrote the decision in O'Brien, was the fourteenth chief justice of the U.S. Supreme Court. Warren was born in Los Angeles, California, in 1891. He grew up poor and lost his father to murder. Justice Warren put himself through college and law school at the University of California. He then devoted most of his working life to public service.

One of the Warren Court's most important decisions was Brown v. Board of Education (1954). In Brown, Justice Warren convinced the Supreme Court to vote unanimously to end segregation in public schools. Segregation was the practice of schooling black and white students in "separate but equal" facilities. Unfortunately, schools for black students usually were not as good as the ones for white students. In the Court's decision, Justice Warren wrote that separate is not truly equal in the United States of America.

Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

The Supreme Court: Selections from the Four-Volume Encyclopedia of the American Constitution and Supplement. New York: Macmillan Library Reference USA, 1999.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.

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United States v. O'Brien 1968