U.S. v. O'Brien: Supreme Court Case, Arguments, Impact

Burning a Draft Card in Protest

David A. Reed, 19, of Voluntown, Connecticut, David P. O'Brien, 19, of Boston, David Benson, 18, of Morgantown, Virginia and John A. Phillips, 22, of Boston as they burn their draft cards at a Vietnam War protest in Boston
David A. Reed, 19, of Voluntown, Connecticut, David P. O'Brien, 19, of Boston, David Benson, 18, of Morgantown, Virginia and John A. Phillips, 22, of Boston as they burn their draft cards at a Vietnam War protest in Boston.

 Bettman / Getty Images

In United States v. O’Brien (1968), Chief Justice Earl Warren laid out a test for deciding whether the government has unconstitutionally restricted symbolic speech. In general, the First Amendment of the U.S. Constitution protects a person’s right to speak freely. However, the 7-1 majority decision in O'Brien found that there are some instances in which the government can regulate free speech, like burning a draft card during wartime.

Fast Facts: U.S. v. O'Brien

  • Case Argued: January 24, 1968
  • Decision Issued: May 27, 1968
  • Petitioner: United States
  • Respondent: David O'Brien
  • Key Questions: Did Congress violate the First Amendment of the U.S. Constitution when it outlawed the symbolic act of burning a draft card?
  • Majority: Justices Warren, Black, Harlan, Brennan, Stewart, White, Fortas
  • Dissenting: Justice Douglas
  • Ruling: Congress could create a law against the burning of draft cards because the cards serve a legitimate government purpose during wartime.

Facts of the Case

By the 1960s, the act of burning a draft card was a popular form of anti-war protest. Men aged 18 years or older were required to carry draft cards under the Selective Service System. The cards identified men by their name, age, and service status. In order to stop men from burning or mutilating their draft cards, Congress passed an amendment to the Universal Military Training and Service Act in 1965.

In 1966, on the steps of a courthouse in South Boston, David O’Brien and three other men burned their draft cards in public protest. Federal Bureau of Investigation agents watched from the edges of a crowd that had gathered on the steps. When the members of the public began to attack the protesters, the FBI agents ushered O’Brien inside the courthouse. The agents arrested him for violating the Universal Military Training and Service Act. At trial, O’Brien was sentenced to six years of custody as a youth offender.

Constitutional Question

Freedom of speech is a First Amendment protection that covers all “communication of ideas by conduct.” Is burning a draft card protected under freedom of speech? Did Congress violate O’Brien’s rights by outlawing draft card mutilation under the Universal Military Training and Service Act?


An attorney on behalf of O’Brien argued that Congress restricted O’Brien’s ability to speak freely by federally outlawing draft card mutilation. Burning the card was a symbolic action that O’Brien used to express his frustration over the Vietnam War. When Congress amended the Universal Military Training and Service Act, they did so with the specific intent to prevent protests and suppress freedom of speech.

An attorney on behalf of the government argued that the draft cards were a necessary form of identification. Burning or mutilating the cards hindered a government objective during war time. Symbolic speech could not be protected at the expense of war efforts.

Majority Opinion

Chief Justice Earl Warren delivered the 7-1 decision which upheld the Congressional amendment to the Military Training and Service Act. Justice Warren declined to consider the motives of the legislature. Congress' attempt to subdue certain forms of protest could be considered legal if it served a legitimate governmental purpose, the majority found.

In general, laws that place restrictions on individual rights must pass "strict scrutiny," a type of judicial review. Strict scrutiny requires the court to look at whether or not the law is specific enough and serves a legitimate governmental interest.

In the majority opinion, Justice Warren applied a four-pronged test that differed from strict scrutiny. Justice Warren argued that, though symbolic speech is protected under the First Amendment, the standard of review should be lower than the standard for speech itself. According to the majority decision, government regulation that restricts symbolic speech must:

  1. Be within the power of the legislature
  2. Serve a government interest
  3. Be content neutral
  4. Be limited in what it restricts

The majority found that Congress' law against draft card mutilation passed the test. Justice Warren focused on the importance of draft cards as a means of identification during wartime. The majority opined that the identification cards were essential to ensuring the functionality of the draft. The government's interest in wartime efforts outweighed the individual's right to this type of symbolic speech.

Dissenting Opinion

Justice William Orville Douglas dissented. Justice Douglas' dissent hinged on the nature of the Vietnam War. He argued that Congress had not officially declared war on Vietnam. The government could not show a government interest in draft cards if war had not been officially declared.


In U.S. v. O’Brien, the Supreme Court authored one of its first decisions on symbolic speech. Despite the ruling, draft card burning remained a popular form of protest throughout the 1960s and 1970s. In the 1970s and 1980s the Supreme Court addressed the legality of other symbolic forms of protest like flag burning and wearing arm bands. Cases after O'Brien focused on the phrase "government interest" and its relation to restrictions on symbolic speech.


  • United States v. O'Brien, 391 U.S. 367 (1968).
  • Friedman, Jason. “Draft Card Mutilation Act of 1965.” Draft Card Mutilation Act of 1965, mtsu.edu/first-amendment/article/1076/draft-card-mutilation-act-of-1965.