---
title: "Symbolic Speech Test (O'Brien)"
type: Legal Rule
source: https://casebriefly.com/legal-rules/symbolic-speech-test-obrien
---

# Symbolic Speech Test (O'Brien)

The O'Brien test governs when the government can regulate conduct that has an expressive component. The regulation is valid if it furthers an important government interest unrelated to the suppression of expression and the incidental restriction on speech is no greater than essential.

## Definition

The O'Brien test, established in United States v. O'Brien (1968), provides the framework for analyzing government regulations that burden expressive conduct -- conduct that communicates a message but is not pure speech. O'Brien burned his draft card to protest the Vietnam War, and the Court upheld his conviction under a law prohibiting destruction of draft cards, articulating a four-part test for when the government may regulate conduct that has an expressive element.

Under the O'Brien test, a government regulation of expressive conduct is constitutionally permissible if: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. The third prong is particularly crucial: if the government's interest is related to the suppression of expression (i.e., the regulation targets the communicative impact of the conduct), the regulation is treated as content-based and subject to strict scrutiny rather than the more deferential O'Brien intermediate scrutiny.

The O'Brien test has been applied in numerous contexts, including flag burning, nude dancing, and cross burning. In Texas v. Johnson (1989), the Court found that the government's interest in prohibiting flag burning was related to suppressing the message conveyed, so strict scrutiny rather than O'Brien applied. In Barnes v. Glen Theatre (1991), the Court upheld a public indecency law as applied to nude dancing, finding the government's interest in public morality was unrelated to the suppression of expression. The O'Brien test thus occupies a middle ground between strict scrutiny for content-based restrictions and rational basis review.

## Elements

- The regulation must be within the constitutional power of the government to enact
- The regulation must further an important or substantial governmental interest
- The governmental interest must be unrelated to the suppression of free expression
- The incidental restriction on First Amendment freedoms must be no greater than essential to further that interest
- The conduct must have an expressive element (the actor intends to convey a message, and the audience is likely to understand it)

## Key Case

United States v. O'Brien, 391 U.S. 367 (1968)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| United States v. O'Brien | 391 U.S. 367 (1968) | Established the four-part test for regulations of expressive conduct, upholding the prohibition on draft card destruction |
| Texas v. Johnson | 491 U.S. 397 (1989) | Found that the government's interest in prohibiting flag burning was related to suppressing expression, so strict scrutiny (not O'Brien) applied |
| Barnes v. Glen Theatre, Inc. | 501 U.S. 560 (1991) | Applied O'Brien to uphold a public indecency law as applied to nude dancing, finding the government interest in morality unrelated to expression |
| Tinker v. Des Moines Independent Community School District | 393 U.S. 503 (1969) | Protected students' wearing of black armbands as symbolic political speech in public schools |

## Exam Tips

- The critical prong is the third: is the government's interest related or unrelated to the suppression of free expression? This determines whether O'Brien or strict scrutiny applies
- Before applying O'Brien, confirm that the conduct is expressive: the speaker intends to convey a message and the audience would likely understand it (Spence v. Washington test)
- O'Brien is intermediate scrutiny for expressive conduct -- do not confuse it with strict scrutiny for content-based speech restrictions or the TPM test for content-neutral speech restrictions

## Common Mistakes

- Applying the O'Brien test when the government's interest IS related to suppressing expression -- in that case, strict scrutiny applies (as in Texas v. Johnson)
- Failing to first establish that the conduct is expressive before applying the O'Brien framework
- Confusing O'Brien with the TPM test -- O'Brien applies to regulations of expressive conduct, while TPM applies to content-neutral regulations of speech in public forums

## Mnemonic Or Memory Aid

O'Brien's four prongs: Power, Important interest, Unrelated to expression, No Greater restriction than essential -- think PIUN

## Related Rules

- free-speech-strict-scrutiny
- time-place-and-manner-restrictions
- commercial-speech-test-central-hudson

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Source: [Symbolic Speech Test (O'Brien) — CaseBriefly](https://casebriefly.com/legal-rules/symbolic-speech-test-obrien)