Significance: In this ruling, the Supreme Court established a test to determine the circumstances under which government regulation of free speech might be in the best interest of the nation.
Background: In protest against the Vietnam War, David O’Brien burned his draft card on the steps of the South Boston Courthouse. He was convicted under a federal statute that prohibited the destruction of draft cards. O’Brien claimed that this statute violated his right to free speech.
Decision: This case was argued on January 24, 1968, and decided on May 27, 1968, by a vote of 7 to 1. Chief Justice Earl Warren spoke for the Court in upholding O’Brien’s conviction, with Justice John Harlan concurring. Justice William Douglas dissented. The Court found that the statute against the destruction of draft cards was appropriate because it met three major requirements: (1) it involved the constitutional power to raise an army by any means necessary, (2) it served the government interest by making registration matters easier for both the registration board and the person registering, and (3) its purpose and power was limited to keeping the Selective Service System running smoothly. The Court found that the issue of free speech was unrelated to these concerns and that O’Brien was acting against a valid government interest.
Excerpt from the Opinion of the Court: “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged [sopposed] communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”
