United States v. O’Brien

Following is the case brief for United States v. O’Brien, 391 U.S. 367 (1968)

Case Summary of United States v. O’Brien:

  • Respondent O’Brien burned his draft card to protest the Vietnam War.
  • He was ultimately convicted of violating a federal law, making it a crime to “knowingly destroy” a draft card.
  • The District Court rejected O’Brien’s argument that the law violated his First Amendment rights, but the First Circuit reversed.
  • The U.S. Supreme Court reinstated the District Court’s decision rejecting O’Brien’s First Amendment challenge.  The Court held that the federal law in question was narrowly crafted to satisfy an important governmental interest of administering a system to raise an army, which was unrelated to freedom of expression.

United States v. O’Brien Case Brief

Statement of the Facts:

Respondent O’Brien burned his draft card as a protest against the Vietnam War.  He was arrested, indicted, tried, and convicted of violating the Universal Military Training and Service Act, which makes it a crime to “knowingly destroy” a draft card.  O’Brien argued that the law is unconstitutional because it was enacted to abridge the freedom of speech.

Procedural History:

  • The District Court rejected O’Brien’s free speech argument.
  • The First Circuit Court of Appeals reversed, finding the relevant portion of the Act was unconstitutional because it infringed on the First Amendment by singling out certain types of protests.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Did the law punishing destruction of a draft card violate the First Amendment?  No.


The decision of the First Circuit Court of Appeals is vacated, and the District Court judgment and sentence is reinstated.

Rule of Law or Legal Principle Applied:

A government regulation is justified if (i) it is within the Government’s constitutional power; (ii) it furthers an important or substantial governmental interest; (iii) the governmental interest is unrelated to the suppression of free expression; and (iv) the incidental restriction on the First Amendment is not greater than necessary to further that interest.


The law punishing destruction of a draft card is constitutional on its face and as applied to this case.  Based on the rule stated above, the Government has the power to raise and support armies.  The draft card serves the important governmental interest of notifying and maintaining communication with those registered for the draft.  That interest is not related to free expression, and the law is narrowly drawn to protect the government’s interest in easily administering a system to raise an army.  O’Brien’s conviction is for willful frustration of that non-speech-related governmental interest.

Concurring and Dissenting Opinions:

Concurring Opinion (Harlan):

While the rule articulated by the Court is correct, it does not foreclose the possibility of a valid First Amendment challenge.  There could be the rare case when the law’s incidental restriction on speech might implicate the First Amendment.  Here, however, O’Brien had many other ways to make his point without burning his draft card.

Dissenting Opinion (Douglas):

Congress’ power to raise armies is “broad and sweeping” at times of war.  Congress, however, never officially declared a war in Vietnam.  Therefore, there is a question here if the draft is even permissible in the absence of a declaration of war.  There should be a rehearing to discuss that important question of whether a peacetime draft is appropriate.


United States v. O’Brien is significant because it discusses a lower burden of proof when the First Amendment comes in conflict with a non-speech related government regulation.  Ironically, the O’Brien case did not curtail the burning of draft cards, as it became a popular form of protest during the Vietnam War.  Later, however, in Texas v. Johnson, in 1989, the Court found that the First Amendment protects the burning of an American flag.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments