United States v. O'Brien, 391 U.S. 367 (1968) (U.S. Supreme Court)
United States v. O'Brien is the Supreme Court's seminal decision on how courts evaluate government regulations that incidentally burden expressive conduct—actions that communicate a message, such as burning a draft card or wearing an armband.
Does a federal statute criminalizing the knowing destruction or mutilation of Selective Service registration certificates violate the First Amendment when applied to a defendant who burns his draft card as a form of political protest?
When speech and non-speech elements are combined in the same course of conduct, a government regulation is sufficiently justified if: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest (i.e., is narrowly tailored in the sense required for intermediate scrutiny).
No. The statute is a constitutional, content-neutral regulation of conduct that serves substantial governmental interests unrelated to suppressing expression, and its incidental effect on expression is no greater than essential. O'Brien's conviction was properly sustained.
O'Brien is the foundational case for regulating expressive conduct under the First Amendment. It created the four-part O'Brien test—often described as intermediate scrutiny for content-neutral regulations that incidentally burden expression. The decision underscores that the First Amendment does not immunize all conduct from regulation simply because the actor intends to convey a message. O'Brien also instructs courts to focus on a law's objective operation and neutrality rather than parsing legislative motive. The O'Brien framework has been widely applied in cases involving symbolic expression and conduct regulations, such as public nudity ordinances (Barnes v. Glen Theatre), restrictions on camping in public parks (Clark v. Community for Creative Non-Violence), and various permitting or administrative rules. By contrast, when the governmental interest is related to suppressing the message (e.g., flag-burning bans motivated by preserving a symbol's meaning), strict scrutiny applies and such laws typically fail (Texas v. Johnson; United States v. Eichman).