In O'Brien et al. v. United States (1966), the U.S Supreme Court dealt with a case involving David Paul O'Brien, who publicly burned his draft card as an act of protest against the Vietnam War and was subsequently arrested for violating a federal law that made it illegal to destroy or mutilate such cards. The main issue in this case was whether this law violated O’Brien’s First Amendment right to free speech. In its decision, the court upheld O’Brien's conviction by applying what has come to be known as the "O'Brien test". This test states that a government regulation is sufficiently justified if it is within constitutional power of Government; if it furthers an important or substantial governmental interest; if governmental interest is unrelated to suppression of free expression; and if incidental restriction on alleged First Amendment freedoms is no greater than essential towards furthering that interest.

In the dissenting opinion for O'Brien et al. v. United States, Justice Douglas argued that the majority's decision was a violation of First Amendment rights to free speech and expression. He contended that burning a draft card could be seen as symbolic speech, which should be protected under the Constitution just like verbal or written communication. Furthermore, he disagreed with the majority's assertion that Congress had an interest in preventing this form of protest because it interfered with smooth operation of Selective Service System; instead, he believed such interference was minimal at best and did not justify suppression of political dissent. In his view, punishing someone for expressing their opposition to war through nonviolent means amounted to government censorship based on content - something fundamentally incompatible with principles upon which America was founded.