LOCATION: South Boston Court
DOCKET NO.: 232
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 391 US 367 (1968)
ARGUED: Jan 24, 1968
DECIDED: May 27, 1968
Facts of the case
David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime.
Was the law an unconstitutional infringement of O'Brien's freedom of speech?
Media for United States v. O'Brien
Audio Transcription for Oral Argument - January 24, 1968 in United States v. O'Brien
Number 232 and 233, United States, Petitioner, versus David Paul O'Brien; and David Paul O'Brien, Petitioner, versus United States.
Mr. Solicitor General.
Erwin N. Griswold:
May it please the Court.
This is a criminal case.
It raises the question of the constitutional validity of an amendment which Congress passed in August 1965 to the Universal Military Training and Service Act.
The nature of the statutory provision involved can best be seen at page 3 of the Government's brief in this case which sets out that Section 12 (b) of what is often called the Selective Service Act.
That is the general criminal provision of the Selective Service Act, making a large number of specified actions subject to criminal penalty and I would call the Court's attention first at paragraph 6 at the bottom of page 3, the Section begins: “Any person” in (6), “who annoyingly violates or evades any of the provision of this Title or rules and regulations promulgated pursuant thereto, relating to the issuance, transfer or possession of such certificate shall upon conviction” and so on.
Then, I would refer the Court to paragraph 3 at the middle of page 3, which is the paragraph directly involved in this case, until 1965 it contained the words which are not printed in italics, making it a crime for any person to forge, alter or in any manner change any such certificate and what Congress did in 1965 was to add the forewords which are printed in italics, “knowingly destroys, knowingly mutilates”.
The case was tried in the District Court of the United States for the District of Massachusetts in June 1966 before Judge Sweeney in a jury.
I would bring to the Court's attention the fact that the defendant had no counsel at the trial.
This was his own choice and Judge Sweeney took pains to see that he was advised as to his rights or that he understood his rights.
In this connection, it should also be observed that he had counsel at his arraignment.
That an appearance was entered for him; that he obviously had counsel in preparing a motion to dismiss which he filed on constitutional grounds and that he has the help of counsel in this Court as he had in the court below.
The evidence at the trial was not in dispute.
It showed that the defendant and three others burned small white cards on the steps of the South Boston Courthouse on March 31, 1966 in the presence of a sizable crowd.
Four photographs of this event were introduced into evidence and they appear at pages 48 to 51 of the record.
Photographs of the remnant of the draft card itself were also received in evidence and can be found on pages 52 and 53 of the record.
Immediately after the event and after he had been advised of his right to remain silent and to have counsel, the defendant told an agent of the Federal Bureau of Investigation, and this is on page 11 of the record: “I asked him what he had done, what he had burned”, said the agent.
“He told me that he had burned a Selective Service Certificate and that he knew it was a violation of federal law but that he had his own beliefs and his own philosophies why he did it.
And he produced the charred remains of the Selective Service Certificate which he showed me and it was in an envelope.
I asked him if it is alright if I photographed it and he said it was perfectly alright.
And I called in Special Agent Burnt who was with me and we photographed the remains”.
The defendant did not testify nor call any witnesses but he did make an argument to the jury at -- during which he stated, and this is on page 29 of the record and, “I don't contest the fact that I did burn my draft card because I did”.
The jury returned the verdict of guilty and after a careful consideration which is fully disclosed on the record, Judge Sweeney sentenced the defendant under the Youth Correction Act.
In the defendant's brief, this is referred to as a six-year maximum indeterminate sentence and in a very real sense it is.
But it is also quite different from an ordinary sentence because it can be much shorter than the maximum and it can be terminated in such a way as to leave the defendant with no criminal record.
How old is the defendant?
Erwin N. Griswold:
He was 19 at the time of the offense.
And a person can be sentenced under that Act up to what age Mr. Solicitor General?
Erwin N. Griswold: