391 U.S. 367 (1968)
On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse.1
A sizable crowd, including several agents of the Federal Bureau of Investigation, witnessed the event.2 Immediately after the burning, members of the crowd began attacking O'Brien and his companions.3 An FBI agent ushered O'Brien to safety inside the courthouse.4
After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law.5 He produced the charred remains of the certificate, which, with his consent, were photographed.6
For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts.7 He did not contest the fact that he had burned the certificate.8 He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his antiwar beliefs, as he put it, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position."9
The indictment upon which he was tried charged that he "willfully and knowingly did mutilate, destroy, and change by burning . . . (his) Registration Certificate (Selective Service System Form No. 2); in violation of Title 50, App., United States Code, Section 462(b)."10 Section 462(b)(3), one of six numbered subdivisions of § 462(b), was amended by Congress in 1965, 79 Stat. 586, so that at the time O'Brien burned his certificate an offense was committed by any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . ."11
In the District Court, O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose.12 The District Court rejected these arguments.13
On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech.14 The Court of Appeals ruled, however, that O'Brien's conviction should be affirmed under the statutory provision making violation of the nonpossession regulation a crime.15
The Government petitioned for certiorari arguing that the Court of Appeals erred in holding the statute unconstitutional.16 O'Brien cross-petitioned arguing that the Court of Appeals erred in sustaining his conviction on the basis of a crime of which he was neither charged nor tried.17 The Supreme Court granted the Government's petition to resolve the conflict in the circuits, and it also granted O'Brien's cross-petition.18
Whether the 1965 Amendment to the Universal Military Training and Service Act prohibiting the knowing destruction or mutilation of Selective Service certificates is constitutional as enacted and as applied?19
A government regulation is sufficiently justified if it is within the constitutional power of the Government.20 It must further an important or substantial governmental interest.21 The governmental interest must be unrelated to the suppression of free expression.22 The incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest.23 Congress possesses broad power to raise and support armies and to establish a system of registration that includes issuance of certificates whose continuing availability serves legitimate administrative functions.24
Yes. The 1965 Amendment falls within Congress's constitutional power to raise armies because it protects the continuing availability of registration and classification certificates that perform multiple administrative functions for the Selective Service System.25 O'Brien burned his registration certificate on the steps of the South Boston Courthouse on March 31, 1966, knowing the act violated federal law.26 The governmental interest in preventing such destruction is unrelated to the suppression of expression since the statute applies to all knowing destruction regardless of motive.27 The restriction is narrowly tailored because it addresses only the noncommunicative impact of rendering certificates unavailable and does not punish expression itself.28
The facts establish that O'Brien was indicted, tried, convicted, and sentenced under the amended statute in the District of Massachusetts for this precise conduct.29
The 1965 Amendment is constitutional both as enacted and as applied to O'Brien.30
Related opinions on this issue
Justice Harlan concurred in the Court's opinion.31 He wished to make explicit his understanding that the four-part test does not foreclose consideration of First Amendment claims in those rare instances when an incidental restriction upon expression has the effect of entirely preventing a speaker from reaching a significant audience with whom he could not otherwise lawfully communicate.32 Harlan emphasized that this is not such a case.33
O'Brien manifestly could have conveyed his message in many ways other than by burning his draft card.34 This clarification ensures that the test leaves room for exceptional situations where expression is completely suppressed by an incidental regulation.35
Justice Douglas dissented from the Court's decision.36 He argued that the underlying and basic problem in this case is whether conscription is permissible in the absence of a declaration of war.37 Douglas noted that this question has not been briefed nor was it presented in oral argument.38
He submitted that it is a question upon which the litigants and the country are entitled to a ruling.39 Douglas pointed out that this Court has never ruled on the question.40 He urged that the case should be put down for reargument and heard with Holmes v. United States and Hart v. United States.41
Douglas further explained that the rule against considering issues not raised by the parties yields in exceptional cases to the need to correctly decide the case before the Court.42
Whether O'Brien's act of burning his registration certificate constituted protected symbolic speech under the First Amendment?43
Even on the assumption that the alleged communicative element in conduct is sufficient to bring the First Amendment into play, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity when speech and nonspeech elements are combined in the same course of conduct.44
No. O'Brien's public burning of his registration certificate to influence others to adopt antiwar beliefs combined speech and nonspeech elements.4546 Yet the nonspeech element of destroying the certificate could be regulated because a sufficiently important governmental interest justified incidental limitations on First Amendment freedoms.47 The facts show O'Brien stated to FBI agents that he burned the certificate because of his beliefs.48 He argued to the jury that he did so publicly to prompt reevaluation of positions on Selective Service and the armed forces.49
The statute regulates only the independent noncommunicative impact of rendering the certificate unavailable and does not target expression.50
O'Brien's act of burning his registration certificate did not constitute protected symbolic speech under the First Amendment.51
Whether O'Brien's conviction may be affirmed on the basis of a lesser included offense under the nonpossession regulation of which he was neither charged nor tried?52
The Supreme Court vacated the judgment of the Court of Appeals and reinstated the judgment and sentence of the District Court without reaching the issue raised by O'Brien in his cross-petition.53
No. The Court of Appeals affirmed O'Brien's conviction under the nonpossession regulation as a lesser included offense.5455 The Supreme Court vacated the Court of Appeals judgment and reinstated the District Court judgment and sentence because the 1965 Amendment itself is constitutional.56 This disposition rendered consideration of the cross-petition unnecessary.57 The facts establish that O'Brien was neither charged nor tried under the nonpossession regulation.58
The Government had petitioned for certiorari on the constitutionality of the Amendment while O'Brien cross-petitioned on the lesser-included-offense ruling.59
The Court did not reach the question whether O'Brien's conviction may be affirmed on the basis of the nonpossession regulation.60