The Warren Court (1953–69)

Freedom of Expression

What test did the Warren Court create to evaluate restrictions on conduct that has expressive and non-expressive elements?

The Warren Court created such a test in its 1968 decision United States v. O’Brien. The case involved the prosecution of David Paul O’Brien for burning his draft card on the steps of a Boston courthouse. A federal law prohibited the knowing mutilation of draft cards. O’Brien countered that he had a First Amendment right to express his political beliefs and opposition to the Vietnam War. The Court established the following test, later called the O’Brien test:

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.

The Court applied this test to determine that O’Brien’s conviction did not violate his First Amendment rights. “The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System,” the Court wrote.

A group of men burn their draft cards in 1968 to protest U.S. involvement in the Vietnam War. The Supreme Court ruled in United States v. O’Brien (1968) that the conviction of a man for burning his draft card did not violate his free speech rights. Hulton Archive/Getty Images.

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