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U.S. v. O'Brien — Study Notes

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

Study notes for U.S. v. O'Brien: professor notes, cold call prep, exam angles, and memory aids.

The First Amendment does not protect actions that are symbolic speech when there are important governmental interests at stake.
Professor Notes

In U.S. v. O'Brien, the Supreme Court addressed the intersection of symbolic speech and governmental regulation. The Court ruled that although the First Amendment protects symbolic speech, it does not preclude government from regulating conduct that has an important interest—even if that conduct has an expressive element. The case centered around O'Brien's act of burning his draft card, which the Court found to be conduct that the government has a substantial interest in regulating to maintain the integrity of the draft system during a time of war. Professors typically emphasize the balancing test applied in this ruling, distinguishing between pure speech and symbolic conduct.

Cold Call Prep
  1. 1Explain the significance of symbolic speech in the context of U.S. v. O'Brien.
  2. 2What were the government's interests in regulating draft card destruction?
  3. 3How did the Court distinguish between expressive conduct and pure speech?
  4. 4Discuss the implications of the ruling for future First Amendment cases.
  5. 5What was the dissenting opinion's perspective on First Amendment protections in this case?
  6. 6Identify the tests established by the Court for evaluating restrictions on symbolic speech.
Mnemonic Device

O'Brien: 'Obey the Draft, Respect the Law.'

Distinguish From
CaseDistinction
Tinker v. Des Moines Independent Community School DistrictTinker involved student expression through armbands, which the Court found protected as symbolic speech, whereas O'Brien's act of burning involved a federal law context with significant governmental interest.
Texas v. JohnsonTexas v. Johnson protected flag burning as a form of symbolic speech under the First Amendment; O'Brien, however, upheld a law regulating actions seen as interfering with government interests.
Policy Arguments

For the Rule

The regulation protects vital government functions and the integrity of the draft system, which are necessary during times of war.

Against the Rule

Restricting symbolic speech undermines First Amendment freedoms and could set a precedent for broader infringements on personal expression.

Class Discussion Points
  • How does U.S. v. O'Brien inform our understanding of the First Amendment's scope?
  • What are the implications of this ruling on future protests and expressions of dissent?
  • Can laws that limit symbolic speech be justified under other circumstances?
  • How do governmental interests weigh against personal freedoms in legal interpretations of the First Amendment?
Exam Angle

U.S. v. O'Brien is often tested on the limits of First Amendment protections concerning symbolic speech and the government's ability to regulate conduct based on significant interests. Students should be prepared to analyze how the Court's balancing test applies to government regulation.

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