O'Brien Formula

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O'BRIEN FORMULA

The Supreme Court has occasionally stated that the test set out in united states v. o ' brien (1968) should be employed in cases involving the content-neutral regulation of speech. Under that test such a regulation is "sufficiently justified if it furthers an important or substantial government interest … and if the incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest."

Current doctrine is more complicated than such statements imply. First, the O'Brien test often is not employed in important cases involving content-neutral regulations. For example, when speakers seek access to government property, the Court turns to a body of tests and rules that fall under the heading of public forum doctrine. The O'Brien test has been largely absent from the opinions in those cases.

Second, even when the O'Brien test is applied, the Court often deviates from the test's original language in ways that seem to make the test more speech-protective. For example, the O'Brien test implies that the furtherance of a substantial state interest by the appropriate means always outweighs the interest in freedom of speech. But the Court will sometimes ask whether the government interest is sufficiently substantial to justify the effect of the ordinance on expression. In addition, the Court may consider factors not mentioned in the test—principally, the adequacy of alternative channels of communication.

Nonetheless, the Court's application of the test has been less rigorous than its wording might connote. Indeed, some commentators have been led to suggest that the O'Brien test really means that the government always wins. This is a plausible reading of the test's treatment in the Supreme Court, but not of its treatment in the lower courts. In fact, the O'Brien test is simply a mangled attempt to state that courts should consider competing interests and arrive at appropriate decisions.

Steven Shiffrin
(1992)