O’Brien Test (a form of intermediate
scrutiny) (adopted by Supreme Court in United States v.
O'Brien, 391 U.S. 367 (1968), a symbolic speech/expressive
conduct case involving the burning of a draft card as a protest
against the Vietnam War).
The O'Brien test is what is called a two-track test.
Initially, when the government regulates a form of expressive
conduct, the Supreme Court applies a 3-part test that is a version
of intermediate scrutiny. However, if the government fails to
satisfy the second part of the test, it must then satisfy strict
scrutiny in order to justify its regulation. Part two of the test
focuses on the government's reasons for regulating the conduct at
issue.
This distinction was identified in Texas v. Johnson:
We must first determine whether
Johnson's burning of the flag constituted expressive conduct,
permitting him to involve the First Amendment in challenging his
conviction. See, e.g., Spence v. Washington, 418 U.S. 405,
409-11 (1974). If his conduct was expressive, we next decide
whether the State's regulation is related to the suppression of
free expression. See, e.g., United States v. O'Brien, 391 U.S.
367, 377 (1968). If the State's regulation is not related to
expression, then the less stringent standard we announced in
United States v. O'Brien for regulations of noncommunicative
conduct controls. If it is, then we are outside of O'Brien's
test, and we must ask whether this interest justifies Johnson's
conviction under a more demanding standard. A third possibility
is that the State's asserted interest is not implicated on these
fact, and, in any event, the interest drops out of the picture.
The O'Brien test in its entirety requires:
When speech and non-speech elements combine in the same course of
conduct, the government can regulate the conduct if the
regulation:
(1) furthers an important government interest;
(2) the interest is unrelated to the suppression of free
expression; and
(3) is narrowly tailored to further the government’s interest (but
the government need not utilize the least restrictive means).
If the government fails to satisfy the second part of the test, as
occurred in Texas v. Johnson, it must satisfy a stricter
test and show that it adopted a narrowly tailored, least
restrictive means to accomplish a compelling interest.