O'Brien Test
While writing the majority opinion for United States v. O'Brien, Chief Justice Warren described a series of guidelines used to determine whether a law that restricts speech violates the First Amendment. These guidelines must remain neutral in relation to the subject of the speech at hand (i.e., a speech that criticizes government action and is believed to violate a law must be treated the same way as a speech under identical circumstance, but praises the government as opposed to criticizing.) The O'Brien test is not meant to be the absolute deciding factor in cases involving non-verbal speech, but an additional tool to invoke against prohibitions.
The O'Brien Test is thus: The law in question must
- be within the constitutional power of the government to enact.
- further an important or substantial government interest.
- That interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it.)
- Prohibit no more speech than is essential to further that interest.
Read more about this topic: Symbolic Speech
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