United States v. O'Brien Revisited: Of Burning Things, Waving Things, and G-Strings

Abstract

McGoldrick begins this article with an examination of the opinion of the U.S. Supreme Court in U.S. v. O'Brien, a case involving the symbolic speech of the burning of a draft card. The Court stated a four-part test for when governmental regulation of the non-speech element would be allowed: [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. McGoldrick takes a look at U.S. Supreme Court cases before O'Brien that involved symbolic speech. He then offers criticism of the decision in O'Brien for its failure to articulate a standard for speech versus conduct and examines the opinion in Spence v. Washington, a case in which the Supreme Court attempted to rectify this error. McGoldrick goes into more detail concerning the four part test of O'Brien and criticizes parts two through four as being a confusing free speech intermediate test. He criticizes O'Brien for its failure to apply strict scrutiny and for a misapplication of the intermediate test. McGoldrick advocates a time, place and manner approach as an alternative to O'Brien and concludes that O'Brien should be overruled.

Keywords: U.S. v. O'Brien, symbolic speech, freedom of speech

JEL Classification: K19