United States v. O'Brien

391 U.S. 367, 88 S. Ct. 1673 (1968)



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.


On the morning of March 31, 1966, Defendant and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. An FBI agent ushered Defendant to safety inside the courthouse. After he was advised of his right to counsel and to silence, Defendant stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. Defendant produced the charred remains of the certificate, which, with his consent, were photographed. Defendant was convicted and sentenced after he publicly burned his registration certificate in an attempt to influence others to adopt his antiwar beliefs. Defendant argued that application of the amendment to the Universal Military Training and Service Act was unconstitutional in its application and as enacted because of Congress' alleged purpose to suppress freedom of speech. The Court held that a sufficient governmental interest justified the conviction because of the government's substantial interest in assuring the continuing availability of issued Selective Service certificates, because the amendment condemned only the independent noncommunicative impact of conduct within its reach, and because the noncommunicative impact of defendant's act frustrated the government's interest. 


Is a statute that proscribes non-verbal communication invalid on its face or as applied where the communication may incite others to violate the law and the specific violations contemplated may pose a danger to the public? 




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. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong.  Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it.

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