United States v. O’Brien

PETITIONER:United States
RESPONDENT:O’Brien
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.

Question

Was the law an unconstitutional infringement of O’Brien’s freedom of speech?

Earl Warren:

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.

Potter Stewart:

How old is the defendant?

Erwin N. Griswold:

He was 19 at the time of the offense.

Potter Stewart:

And a person can be sentenced under that Act up to what age Mr. Solicitor General?

Erwin N. Griswold:

21.

Potter Stewart:

21?

Erwin N. Griswold:

That is when the offense is committed.

Potter Stewart:

When the offense —

Erwin N. Griswold:

21.

When the case went to the United States’ Court of Appeals for the First Circuit that Court in an opinion by Judge Aldrich held that the 1965 Amendment which made draft card burning specifically an offense was unconstitutional as a suppression of symbolic speech.

Having reached the result of unconstitutionality however, Judge Aldrich then exercised the certain measure of what might be called Yankee ingenuity.

He held that the judgment of conviction should nevertheless be sustained because the facts necessarily prove to support the draft card burning charge inevitably clude — included proof of a related offense, namely, not being in possession of a draft card as required by the Selective Service Regulations and made an offense under paragraph 6 of the statute to which I’ve already referred.

Is that on the theory of it being an included offense?

Erwin N. Griswold:

Judge Aldrich said it was an included offense.

I would support the result on a slightly different verbal formulation that it was an offense the facts of which were proved and the fact that the Government appeared to proceed under a different clause of the statute didn’t negative the validity of the conviction when the facts proved showed a violation of Section 6 even though Section 3 was out.

William J. Brennan, Jr.:

What was that charge —

Abe Fortas:

Is that brief a —

William J. Brennan, Jr.:

— a violation in Section 6, Mr. Solicitor?

Is there a charge of violation of Section 6?

Erwin N. Griswold:

The question with respect to Section 6 and the possession offense is the issue in Number 233, the respondent’s petition.

I would prefer to deal with that after I’ve dealt with the constitution argument —

William J. Brennan, Jr.:

Well, may I — that’s part of what?

May I ask you, if this is — is it — this is the charge in page 3, is this the only one we’re dealing with —

Erwin N. Griswold:

That is the — the indictment is on page 3 and that is the entire —

William J. Brennan, Jr.:

And that’s — that is relied upon to support, the conviction under —

Erwin N. Griswold:

Yes Your Honor.

William J. Brennan, Jr.:

— both 3 and 6, is it?

Erwin N. Griswold:

Yes, Your Honor.

From this result, both parties sought certiorari and the grant of both petitions brings the case here.

Earl Warren:

What case of ours is nearest to this case insofar as valid and conviction is concerned under 6 or is charged under 3?

Erwin N. Griswold:

Insofar as – are you talking about the constitutional argument now, Mr. Justice — Mr. Chief Justice?

Earl Warren:

Well, any decision that we have rendered saying that a case like this, for his charge, burning a draft card, was sustained a conviction for his not possessing one?

Erwin N. Griswold:

I would suppose that the recent case which is closest to it is United States against Hutcheson in 312 U.S. where the Court said, “In order to determine whether an indictment charges an offense against the United States, designated by the pleader of the statute under — an offense designation by the pleader of the statute under which he purported, delay the charge is immaterial.

He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.

Now, here it is not really another statute, it’s another clause of the same statute —

Abe Fortas:

What is the referent of the word “if” that it says you’re talking about the evidence or the charge?

What you have here —

Erwin N. Griswold:

I am talking about —

Abe Fortas:

— what you have here is the specific statement in unmistakable language of the charge, namely, mutilation or destruction.

Erwin N. Griswold:

That he burned his draft card and it is an inevitable consequence of that that he was thereafter not in possession of the draft card.

Abe Fortas:

I know but the quotation that you have read seems to me to indicate that the language used in the indictment has to be susceptible of being construed as language laid under one section or the other or under one statute or the other; that’s not true here.

All you have here is the argument that the evidence shows that it could have been charged with the violation of 6.

But anyway, you said you’re coming to that later; so I don’t want press it.

Erwin N. Griswold:

Well, that is an issue that you get to only if you decide against us on the constitutional issue and it was for that reason that I had regarded it as a subordinate issue and had planned to deal with it later.

Hugo L. Black:

Mr. Solicitor General, I don’t want to interfere with you or interrupt you but are you saying it would not raise a constitutional issue to charge a man for the violation of one statute and have his conviction affirmed for violation of another statute?

Erwin N. Griswold:

Not if the facts which were required to prove the first offense were also facts which would prove the second offense.

Byron R. White:

In those facts, he was charged?

Now this — I gather your argument is that this in — that this charge indicates that mutilate, destroy and change not only charges an offense under one section of the statute but an offense in the (Voice Overlap) true.

Erwin N. Griswold:

That is exactly our position, Your Honor.

It is not verbally so but it is logical.

William J. Brennan, Jr.:

Well, Mr. Solicitor General, I gather you’d still say this although this charge is only mutilate, destroy and change by burning a certificate without identification of Section 3, I take it you’d make the same argument even had the pleading here —

Erwin N. Griswold:

I would make the same argument —

William J. Brennan, Jr.:

— identified this to Section 3 with —

Erwin N. Griswold:

— even if it had referred to Section 3, under our cases cited in our brief where the Government has brought an indictment under one section of the revised statutes or of the Criminal Code and this Court has sustained the conviction under another section of the revised —

Byron R. White:

But this doesn’t even refer to the Section.

No, it doesn’t.

Erwin N. Griswold:

I’m sorry, Your Honor?

William J. Brennan, Jr.:

This charge doesn’t even refer to this Section (Voice Overlap) —

Erwin N. Griswold:

This charge does not refer to the Section at all and it is all under the same Section.

I think we got into this by my saying that though Judge Aldrich had recalled it a lesser included offense, I did not regard it as a lesser included offense.

I regarded it as another offense under the same Section.

Well, are — I regret having asked the question but it seems to me that we are off on a subsidiary issue but you’re here on the constitutionality of this (Inaudible) statute?

William J. Brennan, Jr.:

In this case.

Erwin N. Griswold:

That’s certainly is the primary question to which I will now turn.

On the Government’s petition, No. 232, there is only a question of constitutional law.

Erwin N. Griswold:

There’s no question of the construction of the statute, no question as to the effect or the weight of evidence.

The facts are clear and as I’ve indicated in effect admitted.

On its face, there can be no constitutional question about the statute.

It forbids the doing of an act: knowingly destroys, knowingly mutilates.

The contention is made, however, that in the circumstances of this case the act constitutes symbolic speech and that Congress cannot proscribe it because that would violate the First Amendment’s provision of laws abridging the freedom of speech.

Of course, it is clear that there can be symbolic speech or to put it another way that acts may be in effect a speech though they are not vocal, oral, by voice, a nod, the shake of the head, a wink, a raising of an eyebrow at an auction sale, a gesture such thumbs down may be modes of communication and one can readily think of circumstances under which Congress could not forbid them as for example on the case of an address delivered by hand signals to an audience of deaf persons.

But it does not follow from this that all acts are the equivalent of speech or that Congress cannot forbid them even though there is an element of communication in them.

I suppose that assaulting an official of the Selective Service System could be thought of as symbolic speech or breaking a window of this Court building under certain circumstances.

In a sense, refusing to report for induction could be argued to be symbolic speech.

It seems equally clear that all of these acts can be made unlawful by Congress.

In an effort to test this problem, there is one case which this Court has considered which I think is entirely out of the emotional zone and therefore it may be of a particular use in considering this question.

This is People against Stover cited at page 18 of our brief.

That is the case which came through the New York Court of Appeals and it involved a married couple in New Rochelle, New York who thought their taxes were too high and so they strung dirty clothes and underwear and odds and ends of unattractive things on a clothesline in front of their house and each year that they didn’t get their taxes reduced, they put up another clothesline so that in time, they had six, both in the front and in the side of their yard.

And thereafter, after the clothesline were up, the City of New Rochelle passed an ordinance making it illegal to have clotheslines on the front or side of a house abutting the street with certain exceptions in cases of necessity and the defendants in that case did not claim the necessity.

They were then prosecuted under this City Ordinance and were convicted.

They took their case to the New York Court of Appeals where it was very carefully considered in an opinion by then Judge Fuld, who considered expressly the First Amendment argument that this putting up of the clothesline was symbolic speech intended to show their opposition to the local government and the conviction was affirmed by the New York Court of Appeals.

And then not content with that, the parties filed an appeal to this Court and in 375 U.S., this Court dismissed the appeal on the ground that there was no substantial federal question.

Potter Stewart:

There is a very obvious difference in that case, isn’t it?

That involved an affront upon this — the aesthetic sensibilities of other people.

It was not unlike a common law nuisance.

In the present case, I guess does not involved that, does not have that (Voice Overlap) —

Erwin N. Griswold:

I don’t see that that — no I find nothing of aesthetic about this case.

I don’t see that —

Potter Stewart:

Or no injury to other people is there in this case?

Erwin N. Griswold:

I don’t see that that has any bearing on the issue which seems to me to — be the one in which in that case is parallel with what is here which is whether this is symbolic speech.

And if it is, whether it can be proscribed by a law enacted or putting it another way, whether that law is contrary to the First Amendment which is of course is binding on Congress in which through the Fourteenth Amendment was equally applicable to the City of New Rochelle in that case.

Potter Stewart:

Well, I suppose, somebody who had a very sincere belief that the laws against robbery were all wrong could not go express that belief by going around and robbing houses because that would be injuring other people.

But here, you don’t have any of that quality, do you —

Erwin N. Griswold:

We don’t have —

Potter Stewart:

— in the present case?

Erwin N. Griswold:

— that quality but we do maintain that there was a valid reason for the enactment of the statute and not aesthetics to be sure but one related to the effective operation of the Selective Service System, which is within the power expressly granted to Congress to reasons support armies and to enact all laws necessary and proper to carry out the foregoing powers.

Now let me see if I can help to answer your question by turning to another one which is more emotional of the flag.

Neither side here has made much reference to the flag.

I suppose because it comes close to the line.

Of course, the flag is a symbol and burning or defiling a flag could be regarded as symbolic speech.

As things have developed in this country, legislation with respect to desecration of the flag has been almost entirely left to the states.

Nearly every state has such a statute.

The only Act of Congress relates to the District of Columbia.

It is applicable to anyone who shall publicly mutilate, the same word as we have here, deface, defile or defy, trample upon or cast contempt either by word or action upon any such flag.

That’s Title IV of the United States Code, Section 3.

Can there be any doubt about the validity of such a statute?

I would have thought not and similar legislation has been applied in many states decisions.

Of course, a draft card is not a flag.

Nevertheless, it can be regarded as a symbol of public authority.

I suppose that the fact that it is such a symbol as what makes it attracted to burning.

Is it not clear that maintaining public authority, not suppression of speech but simply maintaining public authority, is a proper exercise of Government and specifically has something which Congress could properly regard as necessary and proper to the effective exercise of its undoubted power to raise and support armies.

The defendant relies extensively on the legislative history of the 1965 Amendment.

He makes extensive arguments about the difference between motive behind the statute and the purpose of the statute which are, I regret to say, too elusive for me to comprehend.

Even on the defendant’s ground though, the legislative history which is set out in full in the appendix to the defendant’s brief, seems that best equivocal to me.

I think I should mention that in addition to the legislative history which the defendants sets out, and I only became aware of this myself yesterday afternoon, there is four pages of what I suppose technically would be called “hearing” before the House Armed Services Committee dated August 6, 1965.

However, when this is examined, it is not a hearing in the usual sense and that there were no outside witnesses.

The only persons who participated were members of the committee and that does affect the — in effect the proceedings of the committee at the time that they adopted the report which was presented to the House.

Only three members of both Houses spoke at all, two Congressmen and one Senator.

The House passed the bill by a vote of 393 to 1.

The Senate passed the bill by a voice vote without a roll call.

There were two committee reports by the two Armed Services Committee.

The earlier report is that of the Committee of the House and it states that the states — the purpose of the bill in these terms, the purpose of the proposed legislation is to provide a clear statutory prohibition against the person knowingly destroying or knowingly mutilating a draft registration card.

And the report of the Senate Committee said, if allowed to continue unchecked, referring to draft card burning, this contumacious conduct represents a potential threat to the exercise of the power to raise and support armies.

And can there be any doubt that that is true.

We have —

(Inaudible) is this burning taken place, the privacy of this man (Inaudible) could’ve been reached by this statute?

Erwin N. Griswold:

If that and there had then been publicity to it, that might be.

Why, the publicity (Voice Overlap) —

Erwin N. Griswold:

The impact of this is of course, in its —

The statute says nothing about —

Erwin N. Griswold:

The statute says nothing about that.

I recognized the statute was of course enacted to meet the fact that there was widespread public burning of draft cards.

In United States against Miller, where this same question was considered by the Second Circuit Court of Appeals and its cited on page 15 of our brief, the Court held that the statute was constitutional and said and this bears on your question Mr. Justice Harlan, the proper functioning of the system depends upon the aggregated consequences of individual acts in raising an army no less than in regulating commerce.

The seriousness of an individual’s acts must often be assessed not only in isolation but under the assumption that they may be multiplied manifold.

Therefore, the interest to be served, the efficient functioning of the Selective System is furthered by the statute under attack.

Abe Fortas:

Well, Mr. Solicitor General, I take it that what you’re doing is defending the constitutionality of this statute on the grounds that it is designed to punish contumacious conduct.

Now, isn’t there another approach to it, the statute requires that these cards, draft cards, be kept on the personal possession of the registrant.

And that this — is it arguable that these provisions in (b) were to facilitate in aid in the enforcement of that regulatory provision that is to say that there’s widespread burning of draft cards obviously they’ll be difficult to enforce that provision, requiring that the draft cards be kept in personal possession of the registrant.

Erwin N. Griswold:

I certainly —

Abe Fortas:

I’m not advancing that as a correct analysis but I have them a little surprised that is your argument seemed to be pitched in terms of the defending the statute as a statute designed to punish contumacious conduct which does bring it closely and perhaps quite closely within the area of free speech.

Erwin N. Griswold:

I certainly had no intention, Your Honor, to waive or to ignore the other line of argument which supports the statute.

It is dealt with at length in the Second Circuit’s opinion in United States against Miller.

Particularly at the bottom of page 80 and 81 of that opinion where a considerable number of ways in which the draft card can be useful in the administration of the system are set forth.

And I don’t know of any place where that this is more fully or comprehensively stated than in that opinion of the Second Circuit and I surely intend to rely on it.

To begin with, the Court says the notice of classification serves as proof of registration and it also contains complete information as to a registrant’s classification including the type and date thereof and the period for which it is effective.

Thus inability to produce the card provides an easy means of initially detecting those attempting to evade their Selective Service obligations and this goes on with other potential users of a draft card for about a column and that of course, I intended to rely on them.Perhaps, it was because I was trying not to dodge away from what might be regarded as the hard part of the argument that I came in to the other part first.

Earl Warren:

Putting it on the basis that you and Justice Fortas have been discussing, it wouldn’t make a particular difference with it, whether you did this publicly or privately —

Erwin N. Griswold:

Not at all.

If you defaced or altered or burned (Voice Overlap) —

Erwin N. Griswold:

It would not make — it would make no difference whatever.

That runs into another problem and that the offense then isn’t essentially different from not being in possession of a draft card to which I will turn in a moment.

The suggestion is made in a defendant’s brief; that this statute labors under some sort of infirmity because Congress passed it on its own initiative and without any prodding from the Selective Service System or other officers of the executive branch of the Government.

This seems a rather noble point where usually told that the executive interferes to much in the workings of the Congress.

That Congress should itself determine what are to be the laws of the lands should need no defense.

Certainly, it is not a basis for showing that the statute passed by Congress is unconstitutional.

Erwin N. Griswold:

Congress did not forbid dissent.

It could not do that.

O’Brien was free at all times to express dissent by speech from the courthouse steps or on the street corners, by letters to the editor, by pamphlet, by radio and television.

This case does not involve a question of the line between a speech and no speech where the answer would be clear in favor of speech.

For the contention of the defendant is not that he can speak which of course he can but rather that he can do acts despite the fact that they had been forbidden by that formal action of the representatives of the people in Congress assembled which we call a statute.

Of course, a statute must comply with the terms of the constitution.

This one, we submit does.

In terms it forbids an act clearly and specifically so that there’s no question of over breadth or vagueness.

The defendant knew exactly what was forbidden and what he was doing.

What he did clearly constituted an interference with the effective operation of the Selective Service System and Congress as the legislative arm of the Government, acting according to its judgment determined that this should be unlawful.

Since there was no real impairment of any right to speak and since adequate other avenues of communication were always open to the defendant, the contention of the defendants’ action was symbolic speech should not take away from Congress the power to do what it regarded as necessary and proper in order to carry out its power granted by the constitution to raise and support armies.

As this Court said in the Giboney against the Empire Storage Company case, it is never been deemed an abridgment of freedom of speech suppressed to make a course of conduct illegal merely because the conduct was in part initiated, evidenced or carried out by means of language either spoken, written or printed.

One other point is made by the defendant.

He says that since non-possession of a draft card was already forbidden, it follows that when Congress forbad draft card burning, the only purpose in effect to the statute was to abridge symbolic speech.

It is true that Congress from the beginning of the draft laws and specifically in the Universal Military Training and Service Act passed in 1948 has made it a crime knowingly to violate rules and regulations promulgated under the statute relating to the issuance, transfer or possession of certificates under the draft law.

Either or both the Registration Certification and the Classification Certificate are generally lumped together in the term “draft cards”.

Regulations under the Act have long provided that a registrant must have in his personal possession at all times his Registration Certificate and his Notice of Classification if he has been classified.

Again, it is odd that Congress should be regarded as under a disability because it has shown to — chosen to put into a statute something which is closely related to a regulation.

Some might think it better for the law to be stated in what Congress has itself written rather than by delegated executive action.

Moreover, the regulation could be changed by the executive branch of the Government and might be subject to attack on grounds of construction, or vagueness, or a lack of validly delegated authority.

The statute is clear and specific and subject to change only by Congress.

It should surely spend no lower constitutionally or otherwise because it was preceded and is today accompanied by a closely related regulation.

The statutes on the regulation are not coextensive.

The regulation deals with what might be called a status of non-possession.

It might apply, for example to a man who lost his draft card and then deliberately and willfully did not seek a replacement while the statute pinpoints a particular Act, which results in loss of possession.

For these reasons, we submit that the statute enacted by Congress is constitutional.Application of the statute does not hinder protected methods of protest.

On its face, the law forbids an act and represents a reasonable judgment by Congress, that one who either knowingly destroys or knowingly mutilates a draft card does an act which impairs the effective functioning of the Selective Service System.

That legislative determination, we submit, should be deemed to fall within the bounds of congressional power.

I now turn to the question raised in Number 233, which is the defendant’s position as I’ve already pointed out it need not be reached if our contention as to constitutionality is maintained.

This is a question whether the conviction can be sustained even though the Amendment to clause 3 of the statute is invalid because it amounts to a charge of a non-possession.

Erwin N. Griswold:

As I’ve said, Judge Aldrich said that this was a lesser included offense, we would differ verbally with this and the offense of non-possession is not a lesser included offense.

It’s an offense under the same section of the statute and subject to the same penalty.

We would suggest the conclusion, we would support the conclusion of the judge on the ground that the facts alleged were sufficient to embrace the offense of non-possession; that the facts proved clearly showed non-possession and that there is no unfairness to the defendant in this as he was in no sense taken by surprise.

Abe Fortas:

Well, isn’t this covered by Cole against Arkansas just the other way Mr. Solicitor General?

Erwin N. Griswold:

No, we at least, Your Honor, we have sought to distinguish Cole against Arkansas on pages 34 and 35 of our brief.

There, there was a real shift so that the defendant was taken by surprise and there was a clear element of unfairness.

We think that there is no unfairness here.

Abe Fortas:

You mean there’s no unfairness of charging one thing and then justifying the conviction by some total — reference to some totally different acts so that (Voice Overlap) —

Erwin N. Griswold:

Not at all — Your Honor, I beg not a totally different act, the very same section of the same act.

Abe Fortas:

Yes but the acts are different.

One (Voice Overlap) —

Erwin N. Griswold:

A different clause of the same —

Abe Fortas:

— this man was charged for willfully and knowingly mutilating, destroying and changing —

Erwin N. Griswold:

And that —

Abe Fortas:

— by burning.

Erwin N. Griswold:

— that logically embraces the fact of non-possession.

Abe Fortas:

I beg to differ with you.

I shall think that a lawyer faced with one charged, that is the charge of burning would have a test ahead of him that differs in material and important respects from the defense of a client charged with non-possession and that is presentation of this case to the jury as marshalling of evidence.

The arguments that he presents might be very different from the one than there would be onto the other.

Erwin N. Griswold:

And if they were substantially different, I would agree on you with this.

I think our case on this point turns on the fact that as we see it there is no substantial difference when you get right down to what’s involved.

I think the —

Potter Stewart:

What was the defense of this case in the trial court?

You told us that the defendant admitted at least these arguments to the jury.

He didn’t take the stand himself but that he conceded that he’d violated the statutes.

What was the defense before the jury in this case?

Erwin N. Griswold:

The only defense was the unconstitutionality of the statute.

Potter Stewart:

Yes, he —

Erwin N. Griswold:

He filed a motion to dismiss on the ground of —

Potter Stewart:

He asked he jury to decide that —

Erwin N. Griswold:

He filed a —

Potter Stewart:

Yes.

Erwin N. Griswold:

I had —

Potter Stewart:

Go ahead, excuse me.

Erwin N. Griswold:

I don’t think the jury was called on to pass on the constitutionality of the statute.

I think Judge Sweeney passed on that by denying the motion to dismiss and the jury simply decided to question the fact whether he did burned his draft card, which, I repeat, logically requires a conclusion that he was there after not in possession of it.

Byron R. White:

Yes, but his defense to the jury would — was simply, I’m a pacifist, I think this war is morally wrong and I couldn’t cooperate with it and that’s —

Erwin N. Griswold:

And would’ve been exactly the same on the charged of —

Byron R. White:

That’s the only basis upon which he asked the jury not to convict him, was it?

Erwin N. Griswold:

That is right.

Defendant makes several closely related points at the end of his brief.

He contends that the sentence was so excessive as to constitute a cruel and unusual punishment contrary to the provisions of the Eighth Amendment and he further objects to the words or conduct of the District Judge.

With respect to this, it should be observed that they were not raised in the petition for certiorari and those are not before the Court.

With respect to the conduct of the Court, the entire proceedings on the sentence are on the record.

When this Court reads this portion of the record, it will see I think the concern of the judge about this difficult case and the care that he took in the performance of the duty which was his.

One of the greatest achievements —

Earl Warren:

But the maximum — are the maximum punishments for the two crimes the same?

Erwin N. Griswold:

Yes, Your Honor, they are in the same, (Inaudible) the same words.

Earl Warren:

The same.

Erwin N. Griswold:

The penalty is entirely on the final clause of this Section which has six clauses.

Clause 3 is the one in which the knowingly burns, knowingly mutilates was inserted and Clause 6 is the one that deals with violation of regulations.

Potter Stewart:

Did the Government argue this in the Court of Appeals or is this something that Judge Aldrich thought up on his own?

Erwin N. Griswold:

This is something I believe that Judge Aldrich set up on his own.

I don’t believe this was argued by the Government in the Court of Appeals.

The Government’s position there was that the statute was constitutional.

Potter Stewart:

Well, of course, I realize that but I wonder if they had —

Erwin N. Griswold:

I don’t think they —

Potter Stewart:

— fall back position.

Erwin N. Griswold:

I don’t think they tried to put a second line of defense at that point.

Whatever feelings of —

Hugo L. Black:

What’s the statute of limitation?

Erwin N. Griswold:

Your Honor, I don’t know what the statute on limitations.

I believe it is six years under the Selective Service Act but I’m not sure.

Hugo L. Black:

That I think it would have some bearing on that, on this question.

Erwin N. Griswold:

Well, I — I simply am not informed as to what the statute of limitations if — whether there is special one for this or whether it comes under the general Act.

Whatever feelings of compassion or regret one may have for the defendant in his situation, it’s clear that he violated the law.

We submit that the law was validly made and that it is not fairly to be regarded as an abridgment of freedom of speech when it does not involve speech in anyway and when all avenues of speech remain open to the defendant.

Congress could conclude that the law it passed bears a proper relation to the maintenance of effective self-government.

We submit that the judgment of the Court of Appeals holding the statute unconstitutional should be reversed.

Earl Warren:

Mr. Karpatkin.

Marvin M. Karpatkin:

Mr. Chief Justice, may it please the Court.

In the light of the presentation of factual background by the Solicitor General, insofar as concerns the facts both of the petitioner of the cross-petition, there is very little that need be added insofar as concerns such factual background.

However, I believe a few factual type observations are appropriate and are borne out not only by the reading of the record but by the Solicitor General’s presentation to this Court.

First, I believe it is clear, particularly from the passage which I believe Mr. Justice Brennan referred to that the verbal conduct or symbolic act or whatever words one chooses to use on the part of David O’Brien were intended as an act of dissent.

As an act of expression of dissent, the Government foreign policy, the Government military policy to the war in Vietnam and to drafting of young men to serve in that war.

I think it must also be conceded that this symbolic speech or verbal conduct on O’Brien’s part attracted attention, attracted the attention of media, attracted the attention of media audiences, attracted the attention of a hostile crowd —

Abe Fortas:

What do you mean by a “verbal conduct” That’s not what we’re talking about here, is it?

Marvin M. Karpatkin:

Mr. Justice Fortas, I —

Abe Fortas:

I mean to say, we’re talking about the burning of the draft card and now you can say that that is symbolic First Amendment expression if you want to —

Marvin M. Karpatkin:

I —

Abe Fortas:

— we’re not talking about verbal.

We’re not talking about anything he uttered here, are we (Voice Overlap)?

Marvin M. Karpatkin:

No, Mr. Justice Fortas.

We’re talking about the act of public demonstration on the part of O’Brien in publicly setting fire to his Selective Service Certificate under the circumstances under which he did it.

I used the word verbal conduct synonymously with symbolic speech and I believe that there may be some cases which support it but I won’t press that point.

William J. Brennan, Jr.:

Suppose this charge was that he had willfully placed the — this Certificate in his dresser — drawer all the reason, that you now say that he burned up this way.

Would you be — make any different argument?

He said nothing about it with no media person and no publicity to it but the Government discovered he didn’t carry it because for all other reasons he burned it here, he hid it or put it away on his dresser-drawer and walked out?

Marvin M. Karpatkin:

Mr. Justice Brennan, I believe that some of the same questions would be involved.

William J. Brennan, Jr.:

With the First Amendment question?

Marvin M. Karpatkin:

Some of the First Amendment questions would be involved but not others.

The question, which I believe is a very serious one in this case, and that is our argument that there was a clear and unequivocal manifestation of improper congressional purpose would not exists in a non-possession prosecution.

Consequently, we respectfully suggest to the court that it need not reach the issue of non-possession if it decides the case in a manner on which we suggest that it should be decided.

William J. Brennan, Jr.:

But you would nevertheless be otherwise urging your First Amendment argument?

Marvin M. Karpatkin:

Yes, Your Honor, we would be urging the — that we would be urging the First Amendment arguments if the symbolic act had the same manifestation and the same purpose.

William J. Brennan, Jr.:

Well, “manifestation” you mean same public manifestation?

In other — what I’m trying to get at is, are you making a special point of the fact that this was done publicly in the presence of news media with photographs taken and all the rest of it?

Marvin M. Karpatkin:

Yes, Your Honor, we are because we believe that this brings it close to the line of symbolic speech cases which have been decided (Voice Overlap) this Court.

William J. Brennan, Jr.:

Well, on the — in the hypothetical I’ve put to you —

Marvin M. Karpatkin:

I believe that factor would be much less, Your Honor, and it would be much more difficult to make an argument of symbolic speech under those circumstances.

William J. Brennan, Jr.:

So that symbolic speech requires some public manifestation, does it?

Marvin M. Karpatkin:

Well, it requires an act of communication I believe.

It was Mr. Justice Frankfurter in the Meadowmoor case who talked about free speech in the First Amendment in terms of rational modes of communicating ideas.

And I suppose that that’d be communication, it has to be transmission and reception.

And transmission and reception occurs when there are transmitters and receivers.

William J. Brennan, Jr.:

Well, in my hypothetical, you look — be hard for — to it to find any transmission and reception, wouldn’t you?

Marvin M. Karpatkin:

I think it probably would, Mr. Justice Brennan.

William J. Brennan, Jr.:

So that probably you wouldn’t be making the First —

Marvin M. Karpatkin:

I — that’s why I started in response to this colloquy Your Honor, that I would hope that we would not have to argue this question here.

This was not raised in the court below and I do not believe that the Court has to decide the constitutionality of non-possession.

Earl Warren:

Suppose a soldier —

Byron R. White:

(Inaudible) excuse me.

Earl Warren:

Suppose a solider over in Vietnam in front of a large crowd, soldiers broke his weapon and said it was a protest against the war in the foreign policy of the government, would that be symbolic speech?

Marvin M. Karpatkin:

Mr. Chief Justice, I don’t know whether that would or wouldn’t be symbolic speech but we —

Earl Warren:

But we have —

Marvin M. Karpatkin:

But we —

Earl Warren:

We have to go a little farther than just this particular case, do we not?

Marvin M. Karpatkin:

We certainly do not argue.

As the Government in its brief suggests that under our theory, anything which communicates is protected and that anything which communicates an idea is protected.

We don’t argue that the dumping of garbage is protected or that political assassination is protected or that any other of the fanciful notions which the Government seeks to charges with is protected.

Earl Warren:

Where do you draw the line?

Marvin M. Karpatkin:

We would like to suggest, Mr. Chief Justice, that the lines should be drawn in accordance with the proper application of the clear and present danger test.

However, we feel that even if the Court would choose to apply the ad hoc balancing test that the various values which are placed on the balance on both sides are such so that the statute cannot survive constitutional scrutiny.

Abe Fortas:

Well, there was a lady, Virginia Killims (ph) I think it was who protested the constitutionality of the tax laws.

Tax laws require the maintenance of certain books and records.

Suppose in order to show her cons — deep perversion to the tax laws, she had burned her books and records and done it publicly.

Would that fall in the same category as your draft case and would you defend it on the same basis?

Marvin M. Karpatkin:

I don’t know if I would defend it, Mr. Justice Fortas on the basis that you used —

Abe Fortas:

I don’t mean you personally.

Marvin M. Karpatkin:

— but I would think that it would be much easier to show a valid governmental purpose for the requirement that income tax records be preserved for a certain period of time.

That it is for the requirement that a person have in his possession or that a person be enjoined from mutilating or destroying the Selective Service Certificate.

Abe Fortas:

That’s your problem because now you’re right back to a defense to an attack upon the requirement of possession —

Marvin M. Karpatkin:

Well —

Abe Fortas:

— of a draft card.

But in the Killims (ph) case, well — and you seem to concede that if there is a valid governmental purpose attached to the object, the burning of that object can be criminally punished regardless of the impact of the First Amendment.

Marvin M. Karpatkin:

Well, I would think that these are items which can properly be weighed in the judicial constitutional balance.

And —

Abe Fortas:

That’s what we’re trying to do and I want to know where you — how you — if how in your minds hide the scale tips?

Marvin M. Karpatkin:

Well, let me address myself at this point then, Mr. Justice Fortas to the various suggestions which have been made on the part of the Government in this Court and in other courts and by the learned Solicitor General that this is a proper indication of the power to raise armies because it serves some role in the Selective Service — in the administration of Selective Service.

Now I believe I count to three or four occasions when the Solicitor General repeated that this serves a valid selective service — a valid function but all that he stated was referring to the Second Circuit’s opinion.

Now, I believe that if we outlined all of the rationales which are presented in the Second Circuit’s opinion as well as those in the brief presented by the Government, we are left with no more than the possibility that the certificate may serve some notice giving or identification purpose exclusively for the benefit of the registrant himself.

And that only under the most remote possible conditions can it be suggested that it serves some function for the Government.

It is well-known that the Selective Service System keeps elaborate records at its national headquarters and emergency records of other kinds as well.

Now, I suggest that perhaps the reason why the Solicitor General was not more explicit in stating these reasons is that some of them are so fanciful as perhaps not to be worthy of mention in this Court.

And I noticed that two of those which have been suggested in the lower courts have not been suggested in this Court, namely that in the even of an earthquake, disaster or other flood why — or something of a nature of a flood, it would be possible for — there’d be a quick reconstruction of the records if all men would be ordered to report to a certain place by radio or television.

And the final suggestion which was made in the arguments below but thankfully not in this Court was that in the even of an enemy missile attack and a call by radio why persons could be ordered to report to certain places in accordance with their draft classifications and that would serve a valid governmental purpose.

The only other purpose, which it was suggested is served is that when the registrant to his local board, in the event he may have forgotten his number or forgotten the address of his board while it may assist in this identification if he has the card in his possession.

Now, it seems to me that if that is all that the Government can offer in support of this, it is a very, very light balance indeed.

Abe Fortas:

I thought the — I thought it was an enforcement, provides, to help identify people who have registered.

Marvin M. Karpatkin:

But enforcement of what Mr. Justice Fortas?

Abe Fortas:

Collective Service registration, no?

Marvin M. Karpatkin:

It seems there, does not seem to be — it does not seem to play any role in the enforcement of the Selective Service laws.

No mention of it can be found in any of the volumes and volumes of material which Selective Service is published and the Selective Service System has been administering the Selective Service laws in 1940.

I think it is most surprising indeed that not only was no Selective Service testimony presented to Congress but at anytime, in the course of all of this litigation in the trial courts and the appellate courts, able attorneys for the Government have not been able to come forward with even a single statement on the part of any Selective Service official or defense department official or governmental official showing that this serves any purpose at all.

Potter Stewart:

Does serve a purpose, doesn’t it?

It — isn’t its purpose to notify the registrant?

Doesn’t it serve a notification purpose?

Marvin M. Karpatkin:

Of course, it does, Mr. Justice Stewart.

But it’s not that purpose served at the time that it’s received.

Potter Stewart:

Well, that’s true and —

Marvin M. Karpatkin:

Yes.

Potter Stewart:

— but its not a — there is some reason that there is such a thing as a registration certificate, is there not?

Marvin M. Karpatkin:

The reason is to —

Potter Stewart:

Notify the registrant, isn’t there?

Marvin M. Karpatkin:

There are two certificates, Mr. Justice Stewart.

Potter Stewart:

Yes.

Marvin M. Karpatkin:

There’s a Registration Certificate and a Notice of Classification.

The Registration Certificate is permanent.

The Notice of Classification changes with its classification as a means of notifying the registrant of classification.

And certainly upon receipt, it’s serves that notice purpose.

But that is a purpose presumably for the benefit of the registrant which we would argue the registrant can waive.

As a matter of fact, the Government of States, it is common knowledge that it serves many purposes.

If one has to look for common knowledge, the common knowledge which most people know that Selective Service Certificates serve is that it helps to identify a registrant as being 18 years of age, in a state where 18 years old are allowed to purchase alcoholic beverages.

That’s the only common knowledge with regards to Selective Service Certificates.

Potter Stewart:

You mean a boy burnt — burned up his card, when it serves that function?

Marvin M. Karpatkin:

Perhaps, some are interested in other types of sustenance, Mr. Justice Fortas.

William J. Brennan, Jr.:

Well, if it serves only a notification purpose, a lot of other information on it, I’m sure.

Then does want to have to be told the date of his birth?

It has that on it, does it?

Marvin M. Karpatkin:

Yes, Your Honor.

William J. Brennan, Jr.:

The place of his birth?

Do I have to be told the place of my birth?

Marvin M. Karpatkin:

I —

William J. Brennan, Jr.:

It tells the name and address of some person who will always know my address, the color of my eyes, the color of my hair, my height, my weight, do I have to be told those things if this serves only a notification purpose to me in my classification?

Marvin M. Karpatkin:

I can’t see, Mr. Justice Brennan, how that’s serves a governmental purpose.

William J. Brennan, Jr.:

Well, perhaps, it serves some other governmental purpose.

Your suggestion is that all it does is to serve, as I understood you in your colloquy in Mr. Justice Fortas that the only legitimate purpose is that notifies you is that draft classification.

And once you get it, you’ve got the notice and otherwise, it serves no purpose.

But obviously there’s a lot of information on that which serves, must serve other purpose.

Marvin M. Karpatkin:

Well, if it tells you — if a piece of paper tells you of the date of your birth, I can’t see what other purpose it serves other than to allow you to present some proof as to your date of birth.

Earl Warren:

Why not give the Government some information needed in administering the Selective Service Act to have a young man carry a card that would show that he actually did register in a particular place as this certificate shows, Farmington, Town of Farmington, State of Massachusetts and that the date of his registration was 11 — 12-11-1964 together with the Certificate of the Board on it to the effect that he did actually register.

Now, we have millions of people in this country floating around from one part of the country to another.

A lot of them are young men.

Isn’t it the Government entitled to have some knowledge of those facts as obtained from the young men in order to effectually administer the Selective Service law?

Marvin M. Karpatkin:

Mr. Chief Justice, the Government has this knowledge.

The Government has this knowledge at the time the young men registers and the Government has many, many sources for obtaining this information.

Earl Warren:

Suppose this young man is found out in, let’s say, Arizona.

He’s 19 years old and he has the same attitude that he has here and he refuses to give the Government any information at all.

And the Government wants him to have this card so they can know whether he did register in Farmington, Massachusetts or whether he didn’t.

Don’t you think that might be in the event that a lot of young men did this same thing?

Don’t you think that that might be a manner of concern to the Government?

Marvin M. Karpatkin:

Mr. Chief Justice, if there is any dereliction or delinquency or violation of the Selective Service Statute, the position or retention or non-possession or non-retention of this card will have no effect on the Government’s ability to prosecute.

William J. Brennan, Jr.:

Yes, but obviously, it must serve a purpose of identification, was it not?

Marvin M. Karpatkin:

But that, Mr. Justice Brennan, I must —

William J. Brennan, Jr.:

But not only in registration but of identification.

It has a lot of things, including indeed that this one does, I noticed.

Obvious physical characteristics, scars on right shoulder and wears eyeglass.

And as the Chief Justice suggested, why isn’t it obviously prepared this way and required to be carried so that the Government may be in a position to enforce the requirements of the Selective Service Act.

Marvin M. Karpatkin:

I would suppose that one could question whether or not any problem of self-incrimination might be raised by someone being —

William J. Brennan, Jr.:

Typically, you have a difficult enough constitutional question (Voice Overlap) —

Marvin M. Karpatkin:

I know that, Mr. Justice Brennan.

Hugo L. Black:

(Voice Overlap) could not have another because that reason, they extended there heavily on the right to privacy.

The man might not want anybody.

He might not want the Government to have that information, his constitutional right to privacy, would it be invaded —

Marvin M. Karpatkin:

We are not making any such argument, Mr. Justice Black.

Hugo L. Black:

— without breaking the law?

Marvin M. Karpatkin:

An argument which — but, I do wish to repeat that David O’Brien was neither indicted, nor tried nor convicted for non-possession.

He was indicted and tried and convicted for burning, for violating the 1965 Amendment.

That is the only question we respectfully submit before this Court.

And there is a special area of constitutional questions which are — which arise because of the manner of the enactment of the statute and I do not with respect believe that this can be avoided notwithstanding the suggestion by the Solicitor General that the distinction between congressional motive and congressional purpose is illusive to the Government.

I believe that the entire legislative history, which we have set forth as an appendix to our brief, we’ve done this deliberately because we don’t wish to be open to this suggestion that we are picking and choosing, demonstrates beyond any question that the only congressional purpose here was the purpose of stamping out dissent, of stamping out this particular form and expression of dissent.

The Government indeed so acknowledged it and the Solicitor General acknowledged it in part of his argument.

The Government was seeking to punish contumacious conduct.

The Government acknowledges that — it says that perhaps some of the purposes will less constitutionally justify than others.

The Government acknowledges that at least one of the purposes was to declare draft card burning insulting and unpatriotic.

I respectfully suggest to this Court that it is not within the power of Congress to declare it a felony which could send the young man to jail for five years because Congress believes his conduct to be insulting and unpatriotic.

Abe Fortas:

But somebody might think of it as insulting and unpatriotic to break a window in the Whitehouse but I suppose you could also — the person who did it could also be punished criminally regardless of the fact that he might do it to — as an expression of opinion —

Marvin M. Karpatkin:

That’s quite something Mr. Justice Fortas —

Abe Fortas:

— than to be all of those things, couldn’t it?

Marvin M. Karpatkin:

That’s quite so, Mr. Justice Fortas, but —

Earl Warren:

I think you answered a while ago but I’d like to ask you again.

If this man had — if the petitioner, had done this in private, the privacy of his home and his burned his card, would you be making a constitutional attack on the statute?

Marvin M. Karpatkin:

The argument directed at the unconstitutional purpose and the manifestation of unconstitutional purpose on the part of the Congress would be the same, Mr. Chief Justice.

Yes, and —

Earl Warren:

But you would?

Marvin M. Karpatkin:

Yes, Mr. Chief Justice.

Earl Warren:

Now, tell me what cases you have that would equate a private burning of a draft card contrary to the statute to be symbolic speech?

Marvin M. Karpatkin:

Perhaps, I did not understand your question, Mr. Chief Justice.

What I was saying is that where there is such an extensive degree of congressional excess, unconstitutional excess as there was in this case, that the Act which was passed as a result of it is on its face unconstitutional.

Congress could not have declared it to be a crime for someone to stand up and say, “This Selective Certificate in my hand, I detest it and everything for which it stands”.

Marvin M. Karpatkin:

No more can Congress declare it a crime or someone who, at the time that he sets it and sets fire to it.

Abe Fortas:

Has — have you got any case in which this Court has ever invalidated the statutes solely because of an improper motive on the part of Congress?

Marvin M. Karpatkin:

I — may I first, with respect, Mr. Justice Fortas comment on your terminology.

I believe that the Courts have distinguished between —

Abe Fortas:

I thought I was commenting on yours beforehand.

Marvin M. Karpatkin:

Let me correct my own then, Your Honor.

But I believe that the distinction which we are urging upon this Court and which has been utilized by Courts of Appeals, but I must admit not yet directly and explicitly by this Court, is between a — is between that which is called “motivation” which is the unrevealed reason why a member of a legislature cast or doesn’t cast a vote.

Abe Fortas:

He said not — we haven’t yet explicitly done that.

That’s the answer I wanted.

Marvin M. Karpatkin:

I do believe —

Abe Fortas:

So your answer to my question is that you have no authority —

Marvin M. Karpatkin:

Well —

Abe Fortas:

— to support your argument that this Court may look at the motive of Congress and solely at the motive of Congress and on that basis invalidate the statute as unconstitutional.

Marvin M. Karpatkin:

I think I do have authority which points strongly in that direction, Mr. Justice Fortas.

I refer to the case of Grosjean against The American Press Company and the case of Gomillion against Lighfoot, the Tuskegee racial gerrymandering case.

I believe that in both of those cases, this Court went very close, came very close to it stating that where the legislative purpose is manifestly improper, the Court is not obliged to look any further.

I believe that Grosjean perhaps even more strongly than the other one.

However, I do respectfully commend to the Court the distinctions which were most explicitly stated by Circuit Judge Sofaer in the in the Petty case on page 24 of our brief and by Circuit Judge Brown in the Gomillion case before it came to this Court on pages 25 and 26 of our brief.

And in both of these cases, I believe that these distinguished members of the Fifth Circuit indicated that — forgive me, legislative motive, good or bad, is irrelevant to the process of judicial review but legislative purpose is of primary importance in determining the propriety of legislative action since the purpose itself must be within the legislative competence and the method used must be reasonably widely to accomplish that purpose.

Again, what the legislature of Alabama as distinguished from its members intended on this Court and what the purpose on this Court of the legislature as distinguished from its members was in the enactment of this law is that a traditional matter well concern to the judiciary.

Now, the best cases that I can cite, decisions by this Court is the case of Grosjean and the case of Gomillion.

Now in Grosjean, Mr. Justice Sutherland writing for the Court spoke of two things.

He spoke both of the history of this type of legislation.

This if I may refresh the recollection of all of us was the Newspaper Tax Law enacted by the Huey Long Administration in the State of Louisiana in the 30’s which had the clear effect of discriminating against the large city newspapers in favor of the smaller rural newspapers with obvious political consequences.

And, Mr. Justice Sutherland spoke both of the history of this type of legislation and also the setting in which it was passed.

Now, it seems to me that that Court looked at the setting in 1930 in the Grosjean case.

The Fifth Circuit looked at the setting in which some of these statutes were passed in the Petty case and then in the Gomillion case and I respectfully suggest that this Court should not be and will not be, as Mr. Chief Justice Taft observed in another context, too blind to see what all others can see.

The setting and the purpose of this law, when it was passed by Congress and the legislative history makes it abundantly clear that it had only one purpose in mind.

Nobody was concerned with anything else.

All of that is subsequent rationalizations, subsequent papering is over by able attorneys for the Government at various levels.

Marvin M. Karpatkin:

The First Circuit saw that there was no rationale legislative purpose.

They cited Grosjean and Gomillion but they didn’t comment on it.

They say, “We won’t comment on the purpose on whether it was legitimate or illegitimate.

We won’t say whether it was illegitimate because we find it serves no legitimate purpose”.

And it seems to me that a reading of the entire reading of the entire legislative history would make this clear.

Or do you think Congress (Inaudible) with the symbolic speech.

Marvin M. Karpatkin:

I think that — Mr. Justice Harlan, I think that in this case, and I say this to someone who has a deep respect for the Congress of the United States and have a number of personal friends who were in Congress.

I think that the congressional action in this case was an act of hysteria rather than act of reflection and there was a desire to do something real fast to punish what they re — considered to be unpatriotic.

Are you saying that — do you say that, you are getting in to the area where this Court has insisted or refused to get into — namely to inquire what the motives are (Inaudible) otherwise out of this service?

Marvin M. Karpatkin:

All that I can do, Mr. Justice Harlan, is to respectfully repeat that I am not suggesting that you look into the motives of the 393 persons who voted for it.

I’m suggesting that you look at the two-committee chairman, who were two of the three people to spoke and that the only person who spoke, the authoritative spokesman.

Now, a learned Solicitor General points out that only three spoke but in fact, this straightens the argument because it would be otherwise perhaps if they were some distinction or some mixture in the legislative history, some non-unanimity.

But here, it’s unanimity.

All three who spoke, spoke for one purpose.

We have to do this to support our voice.

We have to do this to punish these beatnik kids.

That is the gist of it.

I am not quoting out of context that can be easily read and seen.

Now, if there was ever a case, where it was appropriate, I respectfully suggest that this Court to follow the precedent which it reached in the Grosjean case and the suggestions made in those Fifth Circuit cases which I cited.

I believe that it would be appropriate in this case.

Shall I continue, Mr. Chief Justice?

Earl Warren:

Yes, continue till the red light is on.

You may —

Marvin M. Karpatkin:

Oh, I’m sorry.

Earl Warren:

You may finish your argument.

Marvin M. Karpatkin:

Oh, thank you.

I believe that it’s important to consider the — not the cases which this Court has not decided, which the learned Solicitor General has referred to, the Stover case in New York or the flag burning case which has not yet come to this Court but cases which this Court has actually decided and where this Court has developed and utilized and applied the doctrine of symbolic speech.

The two chief cases, of course, are the red flag case, Stromberg against California and the flag salute case, was Virginia Board of Education against Barnette.

Now, these cases are cited, passages are quoted in our brief.

But it is very clear from these cases and from later gloss, which this Court has put on it that abstract discussion is not the only the form of speech which is protected by the First Amendment.

Marvin M. Karpatkin:

That it does refer to certain types of action.

And to put it another way, that the only type of action which was protected by the First Amendment is not limited to the movement of the vocal chords that it protects other kinds of action as well.

Now, Mr. Justice Frankfurter in the Meadowmoor case which pointed out that certain types of labor activity could not be protected by the First Amendment —

Hugo L. Black:

Is that an opinion for the Court.

Marvin M. Karpatkin:

I believe it is, Mr. Justice Black.

Hugo L. Black:

The Metamor case?

It might have been.

Marvin M. Karpatkin:

Yes, sir.

No Wagon Drivers Union against Meadowmoor Dairies, the Courts — according to my brief, it is.

Hugo L. Black:

I hadn’t argued, I wrote that opinion.

Marvin M. Karpatkin:

And I’m embarrassed —

Hugo L. Black:

But 1,000 —

Marvin M. Karpatkin:

I’m embarrassed and may I apologize to the Court.

Hugo L. Black:

— and I think if — my Brother Frankfurter wrote a concurring opinion, at least that’s at one Meadowmoor case.

However, it’s not an improper reading.

Marvin M. Karpatkin:

I apologize to the Court for the (Inaudible).

It’s probably an oversight in the editing of brief.

Hugo L. Black:

You may be right.

Marvin M. Karpatkin:

The language, which I’m suggesting and which carries full with the rationale of symbolic speech is that the guarantee of free speech — back of the guarantee of free speech lay faith on the power of an appeal to reason by all of the peaceful means for gaining access to the mind.

It was an order to avert force and explosions due to restrictions upon rationale modes of communication that the guarantee of free speech was given so generous in the scope.

William J. Brennan, Jr.:

Well, suppose what Congress had in mind was, now despite of this form of dissent because of its effect upon the enforcement of the Selective Service, would you still say that that was an illegitimate purpose?

Marvin M. Karpatkin:

In that case, Mr. Justice Brennan, I would say it would have to be tested against one of the constitutional test which was applied by this Court in First Amendment cases out of the clear and present danger test or the balancing test.

The —

Potter Stewart:

The Meadowmoor case, at least the copy I have here in the United States reports, Mr. Justice Frankfurter wrote the opinion for the Court, Mr. Justice Black for the dissenting opinion.

Marvin M. Karpatkin:

I think under the circumstances, it would be appropriate for me to turn to a different case.

I think the doctrine and notion of symbolic speech received further development by Mr. Justice Harlan of this Court and what I’m sure was the concurring opinion, the concurring opinion in the Garner against Louisiana.

And by Mr. Justice Fortas of this Court in what was called the prevailing opinion in Brown against Louisiana.

In both of which, I believe that the notion that speech means more than just a movement of the vocal chords was developed.

In various cases and also in the learned article by Professor Kelvin, various shorthand expressions have been used to describe it.

The working man’s commute — means of communication has been used to describe peaceful picketing.

Abe Fortas:

But it’s also true of course that not all action is speech, not all action is symbolic speech.

Some action is symbolic speech; not all action is symbolic speech.

Marvin M. Karpatkin:

That’s very true.

Abe Fortas:

Your problem is where does this fall and that all embracing duality of propositions.

Marvin M. Karpatkin:

That’s precisely the problem, Mr. Justice Fortas and we are suggesting that this comes within the classical doctrines of symbolic speech that it meets the criteria of symbolic speech which this Court has announced.

It has all the whole (Inaudible) of it, the principle one of which is had it as peaceful and it is non-violent.

And indeed, distinctions could be made to show that the peaceful ritual like act of setting fire to a piece of paper as part of a demonstration against the government policy which this piece of paper represents is much more within the ambit of symbolic speech than some of the other cases where it has been applied.

There’s no concerted action here.

No action of large numbers of persons moving their bodies in any direction either on a picket line or in a radical march which was the case in this Stromberg case.

There is no large numbers of persons going into a place of private property as in the lunch counter in the Garner case or into a public place like the library in Brown against Louisiana.

This was an individual act of a single person.

The First Circuit observed that there was no active incitement or agitation of others involved in this case.

Abe Fortas:

But suppose somebody, as an act of protest throws his quivering body in front of or on the railroad tracks and insists on staying there to — and blocks passenger trains.

Now is that symbolic speech or is that outside of the — or is it action which cannot be defended as symbolic speech because it is an interference with the rights of others.

Marvin M. Karpatkin:

I would say that that kind of a case could not come within this Court’s doctrine of symbolic speech because (Voice Overlap) —

Abe Fortas:

Well, your problem — and so your problem here is whether this is protected, as I see at the moment anyway, is whether this is protected as symbolic speech or whether it is an unprotected interference with the process of Government, with a legitimate process of Government.

Marvin M. Karpatkin:

But I must respectfully insist, Mr. Justice Fortas, that if this Court is prepared to recognize the unconstitutional congressional purpose, then it need not go into such a careful analysis of which side of the line it would go.

Abe Fortas:

That would simplify if that’s the only problem that we have here.

That simplifies a great — but is that your total submission.

Do you say that we have to find that this Act was animated by an improper motive on the part of Congress in order to arrive at the result you seek?

Marvin M. Karpatkin:

No, Mr. Justice Fortas, we don’t say that at all.

But this factor is so clearly and inescapably indicates that it seems to me that it just calls for consideration by this Court.

But I believe that the Court can reach the solution which I respectfully urge upon it on grounds similar to those found by the First Circuit which —

Abe Fortas:

Would you tell me what they are because so far as I’m concerned, I have great difficulty of reaching a result here based upon which requires this Court to act on the — as a result of an assessment of the motivation of the Congress.

So what are your other grounds?

Marvin M. Karpatkin:

The grounds are that regardless of the atmosphere in which the statute was introduced and passed, that the Act which it seeks to punish is an act of symbolic speech within the traditional decisions of this Court recognizing symbolic speech.

That it is as much if not more symbolic speech than peaceful picketing, than a peaceful sit-in, than a peaceful stand-up —

Abe Fortas:

On the — and that’s because you’re — you say that it does not — that it is essentially expression, communication of a point of view, number one.

Number two, that it does not interfere with the rights of others or with the exercise, performance or execution of any legitimate Government function.

And don’t — is that the — am I stating the position correctly?

Marvin M. Karpatkin:

Yes, Mr. Justice Fortas, but if I may elaborate on it, I would state that it’s certainly does not rise to the dignity of being a clear and present danger to any — to the accomplishment of any substantive congressional purpose and I would —

Abe Fortas:

But we don’t have to reach that unless we cross the first one, unless we accept your first position that this is to be considered as if it were speech.

If we consider it not as speech but as action which interferes with the rights of others, which is an aggression on the rights of others or an aggression on the performance of governmental functions, do we still have to reach clear and present danger?

Marvin M. Karpatkin:

No, Mr. Justice Fortas.

It can be decided under the balancing test or any other test which this Court would care to fashion or apply.

But I must suggest that in every other case where this Court has applied symbolic speech, arguments have been used to defend the statutes saying that this is a proper legislative purpose.

The very red flag law, which this Court declared unconstitutional in Stromberg, the Supreme Court of Massachusetts said it’s of proper governmental purpose to ban red flags because they incite people to riot.

We cite that case in our brief.

The mere fact that Congress passed the same thing and that Congress declares that it’s to have a proper — that it — in the opinion of the members of Congress, it has a proper congressional purpose is not sufficient.

I suggest that it’s incumbent upon this Court, I respectfully suggest that it’s incumbent upon this Court when a constitutional attack is made and when something at least appears to have some kind of effect on a First Amendment right to apply one of the constitutional test which has traditionally been applied.

I think it should also be mentioned that this might be one of those areas where there is a mixture, a melding, a hybrid, which is the language which was used in some of the picketing cases, I believe of where there is speech and mixed with action.

I believe, Mr. Justice Douglas has used the phrase — speech, “brigaded to action”.

I think it’s necessary to analyze what is it that the statute seeks to reach.

Does the status seek to reach the action or does the statute seek to reach the speech?

I suggest that not only the legislative history but the — but just the plain examination of what the statute seeks to do shows that it seeks to reach the speech because as the First Circuit pointed out, it was previously in existence, a regulation with the same penalty which would presumably reach the action.

Earl Warren:

Examining the statute otherwise by the legislative history, how do you come to that conclusion?

Marvin M. Karpatkin:

Well, I believe that Chief Judge Aldrich of the First Circuit —

Earl Warren:

No, I’m asking you about —

Marvin M. Karpatkin:

Yes.

I come to that conclusion, Mr. Chief Justice, because there was already in existence a regulation seeking to punish non-possession — the non-possession of these pieces of paper and that consequently that it does not appear to be any other purpose which was served by it.

Hugo L. Black:

I haven’t quite understood the scope or part of your argument.

Suppose there is nothing in this case except the fact that a man wanted to burn his draft card not to protest but he just wanted to burn his draft card.

Would you say that Congress is without power to make it illegal to burn it — engage in that conduct of burning draft cards?

Marvin M. Karpatkin:

Well, I suppose all that I can do here, Mr. Justice Black, is to refer to the same type of argument which might have been advanced in support of the spate of red flag laws, which were enacted by state legislatures in the 1920’s and everybody thought that they were reasonable laws.

And State Supreme Courts held that they were constitutional.

That they were valid means whereby state legislatures could seek to control the dangers of incipient radical movements and of agitation caused by radical movements and riots and violence and things of that nature.

Hugo L. Black:

Are you saying that Congress is without power to make it against the law to destroy draft cards which it has — it should — in order to carry on its business even without any protest in it?

Marvin M. Karpatkin:

If —

Hugo L. Black:

I’m trying to emphasize to you the difference between conduct and speech.

That can be speech, conduct plus speech.

Hugo L. Black:

There can be a press advertising.

There can be marching backwards and forward engaging in conduct, backwards and forward.

Have you any case in mind that has held that the Government is without power to regulate that kind of conduct even though people want to do it in order to picket, in order to express ideas?

If so, what is the case?

Marvin M. Karpatkin:

Well, I think that with respect —

Hugo L. Black:

I think you will find an opinion by Mr. Justice Douglas in which I concurred in which we pointed out that those things were different, one was conduct and one was speech and that that’s speech plus conduct.

Have you found any case of this Court held without more that it’s unconstitutional for a state or the federal government to bar marching backwards and forwards in front of a place in order to protest something it’s done?

Marvin M. Karpatkin:

Well, I would say yes, Mr. Justice Black.

I would say that there is perhaps a greater legislative power to regulate where there is an element of conduct involved than there is in a case where there is pure speech.

And I believe that was the opinion of Mr. Justice Goldberg writing for the Court in Coax against Louisiana.

We don’t challenge that there is greater regulatory power where there is conduct brigaded to the speech but —

Hugo L. Black:

You are saying it become kind of balancing when it shown that there’s conduct plus speech that there should be some kind of balance and to find out time opponent it is for the Government to enforce its law against the conduct which is included.

As I understand it, that’s what your argument?

Marvin M. Karpatkin:

Yes, that’s one of the arguments which we make in the alternative, Mr. Justice Black.

Hugo L. Black:

But I do not think, I know of no case of this Court that has expressly held that violates the constitution or the Government to regulate marching backwards and forwards in front of or around the building, the home, or anything else.

Potter Stewart:

How about Thornhill against Alabama?

Marvin M. Karpatkin:

I was going to cite that, Mr. Justice Stewart

Hugo L. Black:

Well, it does not.

If you read it carefully, you will see it does not.

Marvin M. Karpatkin:

May I —

Hugo L. Black:

This Court has held that it did not.

Marvin M. Karpatkin:

May I respectfully refer to the Court, refer the Court now that the red light has gone on that a case companion to Thornhill, the Carlson case actually brings the language of symbolic speech of this Court’s prior decisions into peaceful picketing.

If I can just say in summation, I have a last — not been able to reach other points which I hoped I will have enough opportunity to reach that — just as decisions of this Court have referred to peaceful picketing as the workingman’s means of communication and the —

Hugo L. Black:

That was in Swing, was it not?

Marvin M. Karpatkin:

I don’t know if it was the Swing case, Mr. Justice Black or if it was the Thornhill-Carlson cases.

I certainly would not want to dispute that without actually having the books in front of me.

And just as the sit-in has been called the poor man’s printing press, I would like tor respectfully suggest that perhaps the act of an unknown, obscure pacifist, who wants to engage in the dramatic anti-war act of burning his draft card makes draft card burning the war protestor’s TV transmitter.

Thank you very much.

Earl Warren:

Alright, we’ll adjourn.