In the United States v. O'Brien case of 1967, David Paul O'Brien was convicted for burning his draft card at a Boston courthouse, violating a federal law that made the destruction or mutilation of drafts cards a crime. He argued that his act was symbolic speech protected by his First Amendment rights. However, the Supreme Court upheld his conviction with a 7-1 vote stating that the government's interest in maintaining an efficient and effective military draft system outweighed any symbolic speech rights that O'Brien claimed. The court established what is known as "O’Brien’s test" which states if a governmental regulation on symbolic speech is unrelated to suppression of free expression then it can be constitutional if it furthers an important or substantial governmental interest; if this interest is unrelated to suppressing freedom of expression; and if restrictions are no greater than necessary for furthering this interest.

In the dissenting opinion for United States v. O'Brien, Justice William O. Douglas argued that David Paul O'Brien's act of burning his draft card was a form of symbolic speech protected by the First Amendment. He contended that this nonverbal expression was part of an anti-war protest and should be considered political speech, which is at the core of what the First Amendment protects. Douglas also criticized the majority's decision to uphold a law making it illegal to destroy or mutilally alter draft cards as being overly broad and potentially chilling free speech rights beyond just this specific case scenario. Furthermore, he disagreed with their conclusion that Congress had sufficient justification in maintaining smooth operation of conscription system because he believed there were less restrictive means available to achieve these goals without infringing on constitutional freedoms.