UNITED STATES v. O'BRIEN
391 U.S. 367 (1968)
MR. CHIEF JUSTICE WARREN
delivered the opinion of the Court.
On the morning of March 31, 1966,
David Paul O'Brien and three companions burned their Selective Service
registration certificates on the steps of the South Boston Courthouse. A
sizable crowd, including several agents of the Federal Bureau of Investigation,
witnessed the event. Immediately after the burning, members of the crowd began
attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety
inside the courthouse. After he was advised of his right to counsel and to
silence, O'Brien stated to FBI agents that he had burned his registration
certificate because of his beliefs, knowing that he was violating federal law.
He produced the charred remains of the certificate, which, with his consent,
were photographed.
For this act, O'Brien was
indicted, tried, convicted, and sentenced in the United States District Court
for the District of Massachusetts. He did not contest the fact [391 U.S. 367,
370] that he had burned the certificate.
He stated in argument to the jury that he burned the certificate publicly to
influence others to adopt his antiwar beliefs, as he put it, "so that
other people would reevaluate their positions with Selective Service, with the
armed forces, and reevaluate their place in the culture of today, to hopefully
consider my position."
The indictment upon which he was
tried charged that he "willfully and knowingly did mutilate, destroy, and
change by burning . . . [his] Registration Certificate (Selective Service
System Form No. 2); in violation of Title 50, App., United States Code, Section
462 (b)." Section 462 (b) is part of the Universal Military Training and
Service Act of 1948. Section 462 (b) (3), one of six numbered subdivisions of
462 (b), was amended by Congress in 1965, 79 Stat. 586 (adding the words
italicized below), so that at the time O'Brien burned his certificate an
offense was committed by any person, "who forges, alters, knowingly
destroys, knowingly mutilates, or in any manner changes any such certificate .
. . ." [Emphasis deleted]
In the District Court, O'Brien
argued that the 1965 Amendment prohibiting the knowing destruction or
mutilation of certificates was unconstitutional because it was enacted to
abridge free speech, and because it served no legitimate legislative purpose.
The District Court rejected these arguments, holding that the statute on its
face did not abridge First Amendment rights, that the court was not competent
to inquire into the motives of Congress in enacting the 1965 Amendment, and
that the [391 U.S. 367, 371] Amendment
was a reasonable exercise of the power of Congress to raise armies.
On appeal, the Court of Appeals
for the First Circuit held the 1965 Amendment unconstitutional as a law
abridging freedom of speech. At the time the Amendment was enacted, a
regulation of the Selective Service System required registrants to keep their
registration certificates in their "personal possession at all
times." 32 CFR 1617.1 (1962). Willful violations of regulations promulgated
pursuant to the Universal Military Training and Service Act were made criminal
by statute. 50 U.S.C. App. 462 (b) (6). The Court of Appeals, therefore, was of
the opinion that conduct punishable under the 1965 Amendment was already
punishable under the nonpossession regulation, and
consequently that the Amendment served no valid purpose; further, that in light
of the prior regulation, the Amendment must have been "directed at public
as distinguished from private destruction." On this basis, the court
concluded that the 1965 Amendment ran afoul of the First Amendment by singling
out persons engaged in protests for special treatment. The court ruled,
however, that O'Brien's conviction should be affirmed under the statutory
provision, 50 U.S.C. App. 462 (b) (6), which in its view made violation of the nonpossession regulation a crime, because it regarded such
violation to be a lesser included offense of the crime defined by the 1965
Amendment. [391 U.S. 367, 372]
The Government petitioned for certiorari
in No. 232, arguing that the Court of Appeals erred in holding the statute
unconstitutional, and that its decision conflicted with decisions by the Courts
of Appeals for the Second and Eighth Circuits upholding the 1965 Amendment
against identical constitutional challenges. O'Brien cross-petitioned for
certiorari in No. 233, arguing that the Court of Appeals erred in sustaining
his conviction on the basis of a crime of which he was
neither charged nor tried. We granted the Government's petition to resolve the
conflict in the circuits, and we also granted O'Brien's cross-petition. We hold
that the 1965 Amendment is constitutional both as enacted and as applied. We
therefore vacate the judgment of the Court of Appeals and reinstate the
judgment and sentence of the District Court without reaching the issue raised
by O'Brien in No. 233.
I.
When a male reaches the age of 18,
he is required by the Universal Military Training and Service Act to register
with a local draft board. He is assigned a Selective Service number, and within
five days he is issued a [391 U.S. 367, 373]
registration certificate (SSS Form No. 2). Subsequently, and based on a
questionnaire completed by the registrant, he is assigned a classification
denoting his eligibility for induction, and "[a]s soon as
practicable" thereafter he is issued a Notice of Classification (SSS Form
No. 110). This initial classification is not necessarily permanent, and if in
the interim before induction the registrant's status changes in some relevant
way, he may be reclassified. After such a reclassification, the local board
"as soon as practicable" issues to the registrant a new Notice of
Classification.
Both the registration and
classification certificates are small white cards, approximately 2 by 3 inches.
The registration certificate specifies the name of the registrant, the date of
registration, and the number and address of the local board with which he is
registered. Also inscribed upon it are the date and place of the registrant's
birth, his residence at registration, his physical description, his signature,
and his Selective Service number. The Selective Service number itself indicates
his State of registration, his local board, his year of birth, and his
chronological position in the local board's classification record.
The classification certificate
shows the registrant's name, Selective Service number, signature, and
eligibility classification. It specifies whether he was so classified by his
local board, an appeal board, or the President. It [391 U.S. 367, 374] contains the address of his local board and
the date the certificate was mailed.
Both the registration and
classification certificates bear notices that the registrant must notify his
local board in writing of every change in address, physical condition, and
occupational, marital, family, dependency, and military status, and of any
other fact which might change his classification. Both also contain a notice
that the registrant's Selective Service number should appear on all
communications to his local board.
Congress demonstrated its concern
that certificates issued by the Selective Service System might be abused well
before the 1965 Amendment here challenged. The 1948 Act, 62 Stat. 604, itself
prohibited many different abuses involving "any registration certificate,
. . . or any other certificate issued pursuant to or prescribed by the
provisions of this title, or rules or regulations promulgated hereunder . . . ." 62 Stat. 622. Under 12 (b) (1)-(5) of the 1948
Act, it was unlawful (1) to transfer a certificate to aid a person in making
false identification; (2) to possess a certificate not duly issued with the
intent of using it for false identification; (3) to forge, alter, "or in
any manner" change a certificate or any notation validly inscribed
thereon; (4) to photograph or make an imitation of a certificate for the
purpose of false identification; and (5) to possess a counterfeited or altered
certificate. 62 Stat. 622. In addition, as previously mentioned, regulations of
the Selective Service System required registrants to keep
both their registration and classification certificates in their personal
possession at all times. 32 CFR 1617.1 (1962) (Registration
Certificates); 19 32 CFR 1623.5 [391 U.S. 367, 375] (1962) (Classification Certificates).
20 And 12 (b) (6) of the Act, 62 Stat. 622, made knowing violation of any
provision of the Act or rules and regulations promulgated pursuant thereto a
felony.
By the 1965 Amendment, Congress
added to 12 (b) (3) of the 1948 Act the provision here at issue, subjecting to
criminal liability not only one who "forges, alters, or in any manner
changes" but also one who "knowingly destroys, [or] knowingly
mutilates" a certificate. We note at the outset that the 1965 Amendment
plainly does not abridge free speech on its face, and we do not understand
O'Brien to argue otherwise. Amended 12 (b) (3) on its face deals with conduct
having no connection with speech. It prohibits the knowing destruction of
certificates issued by the Selective Service System, and there is nothing
necessarily expressive about such conduct. The Amendment does not distinguish
between public and private destruction, and it does not punish only destruction
engaged in for the purpose of expressing views. Compare Stromberg v.
California, 283 U.S. 359 (1931). A law prohibiting destruction of Selective
Service certificates no more abridges free speech on its face than a motor vehicle
law prohibiting the destruction of drivers' licenses, or a tax law prohibiting
the destruction of books and records. [391 U.S. 367, 376]
O'Brien nonetheless argues that
the 1965 Amendment is unconstitutional in its application to him,
and is unconstitutional as enacted because what he calls the
"purpose" of Congress was "to suppress freedom of speech."
We consider these arguments separately.
II.
O'Brien
first argues that the 1965 Amendment is unconstitutional as applied to him
because his act of burning his registration certificate was protected
"symbolic speech" within the First Amendment. His argument is that
the freedom of expression which the First Amendment guarantees includes all
modes of "communication of ideas by conduct," and that his conduct is
within this definition because he did it in "demonstration against the war
and against the draft."
We cannot
accept the view that an apparently limitless variety of conduct can be labeled
"speech" whenever the person engaging in the conduct intends thereby
to express an idea. However, even on the assumption that the alleged
communicative element in O'Brien's conduct is sufficient
to bring into play the First Amendment, it does not necessarily follow that the
destruction of a registration certificate is constitutionally protected
activity. This Court has held that when "speech" and
"nonspeech" elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms. To
characterize the quality of the governmental interest which must appear, the
Court has employed a variety of descriptive terms: compelling; substantial; subordinating;
[391 U.S. 367, 377] paramount; cogent; strong.
Whatever imprecision inheres in these terms, we think it clear that a
government regulation is sufficiently justified if it is within the
constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest. We find that the 1965 Amendment to 12 (b) (3) of
the Universal Military Training and Service Act meets all of
these requirements, and consequently that O'Brien can be constitutionally
convicted for violating it.
The
constitutional power of Congress to raise and support armies and to make all
laws necessary and proper to that end is broad and sweeping. Lichter v. United States, 334 U.S. 742, 755
-758 (1948); Selective Draft Law Cases, 245 U.S. 366 (1918); see also Ex
parte Quirin, 317 U.S.
1, 25 -26 (1942). The power of Congress to classify and conscript manpower for
military service is "beyond question." Lichter
v. United States, supra, at 756; Selective Draft Law Cases, supra.
Pursuant to this power, Congress may establish a system of registration for
individuals liable for training and service, and may
require such individuals within reason to cooperate in the registration system.
The issuance of certificates indicating the registration and eligibility
classification of individuals is a legitimate and substantial administrative aid
in the functioning of this system. And legislation [391 U.S. 367, 378] to insure the continuing availability of issued certificates
serves a legitimate and substantial purpose in the system's administration.
O'Brien's
argument to the contrary is necessarily premised upon his unrealistic
characterization of Selective Service certificates. He essentially adopts the
position that such certificates are so many pieces of paper designed to notify
registrants of their registration or classification, to be retained or tossed
in the wastebasket according to the convenience or taste of the registrant.
Once the registrant has received notification, according to this view, there is
no reason for him to retain the certificates. O'Brien notes that most of the
information on a registration certificate serves no notification purpose at
all; the registrant hardly needs to be told his address and physical
characteristics. We agree that the registration certificate contains much
information of which the registrant needs no notification. This circumstance,
however, does not lead to the conclusion that the certificate serves no
purpose, but that, like the classification certificate, it serves purposes in
addition to initial notification. Many of these purposes would be defeated by
the certificates' destruction or mutilation. Among these are:
1. The
registration certificate serves as proof that the individual described thereon
has registered for the draft. The classification certificate shows the
eligibility classification of a named but undescribed individual. Voluntarily
displaying the two certificates is an easy and painless way for a young man to
dispel a question as to whether he might be delinquent in his Selective Service
obligations. Correspondingly, the availability of the certificates for such
display relieves the Selective Service System of the administrative burden it
would otherwise have in verifying the registration and classification of all
suspected delinquents. Further, since both certificates are in the nature of
"receipts" attesting that the registrant [391 U.S. 367, 379] has done what the law requires, it is in the
interest of the just and efficient administration of the system that they be
continually available, in the event, for example, of a mix-up in the
registrant's file. Additionally, in a time of national crisis, reasonable
availability to each registrant of the two small cards assures a rapid and
uncomplicated means for determining his fitness for immediate induction, no
matter how distant in our mobile society he may be from his local board.
2. The
information supplied on the certificates facilitates communication between
registrants and local boards, simplifying the system and benefiting all
concerned. To begin with, each certificate bears the address of the
registrant's local board, an item unlikely to be committed to memory. Further,
each card bears the registrant's Selective Service number, and a registrant who
has his number readily available so that he can communicate it to his local
board when he supplies or requests information can make simpler the board's
task in locating his file. Finally, a registrant's inquiry, particularly
through a local board other than his own, concerning his eligibility status is
frequently answerable simply on the basis of his classification certificate;
whereas, if the certificate were not reasonably available and the registrant
were uncertain of his classification, the task of answering his questions would
be considerably complicated.
3. Both
certificates carry continual reminders that the registrant must notify his
local board of any change of address, and other specified changes in his
status. The smooth functioning of the system requires that local boards be
continually aware of the status and whereabouts of registrants, and the
destruction of certificates deprives the system of a potentially useful notice
device.
4. The
regulatory scheme involving Selective Service certificates includes clearly
valid prohibitions against the alteration, forgery, or similar deceptive misuse
of certificates. [391 U.S. 367, 380]
The destruction or mutilation of certificates obviously increases the
difficulty of detecting and tracing abuses such as these. Further, a mutilated
certificate might itself be used for deceptive purposes.
The many
functions performed by Selective Service certificates establish beyond doubt
that Congress has a legitimate and substantial interest in preventing their
wanton and unrestrained destruction and assuring their continuing availability
by punishing people who knowingly and willfully destroy or mutilate them. And
we are unpersuaded that the pre-existence of the nonpossession
regulations in any way negates this interest.
In the
absence of a question as to multiple punishment, it has never been suggested
that there is anything improper in Congress' providing alternative statutory
avenues of prosecution to assure the effective protection of one and the same
interest. Compare the majority and dissenting opinions in Gore v. United
States, 357 U.S. 386 (1958). 28 Here, the pre-existing avenue of prosecution
was not even statutory. Regulations may be modified or revoked from time to
time by administrative discretion. Certainly, the Congress may change or
supplement a regulation.
Equally
important, a comparison of the regulations with the 1965 Amendment indicates
that they protect overlapping but not identical governmental interests, and
that they reach somewhat different classes of wrongdoers. 29 The gravamen of
the offense defined by the statute is the deliberate rendering of certificates
unavailable for the various purposes which they may serve. Whether registrants
keep their certificates in their personal [391 U.S. 367, 381] possession at all times, as required by the
regulations, is of no particular concern under the 1965 Amendment, as long as
they do not mutilate or destroy the certificates so as to render them
unavailable. Although as we note below we are not
concerned here with the nonpossession regulations, it
is not inappropriate to observe that the essential elements of nonpossession are not identical with those of mutilation or
destruction. Finally, the 1965 Amendment, like 12 (b) which it amended, is
concerned with abuses involving any issued Selective Service certificates, not
only with the registrant's own certificates. The knowing destruction or
mutilation of someone else's certificates would therefore violate the statute
but not the nonpossession regulations.
We think
it apparent that the continuing availability to each registrant of his
Selective Service certificates substantially furthers the smooth and proper
functioning of the system that Congress has established to raise armies. We
think it also apparent that the Nation has a vital interest in having a system
for raising armies that functions with maximum efficiency and is capable of
easily and quickly responding to continually changing circumstances. For these
reasons, the Government has a substantial interest in assuring the continuing
availability of issued Selective Service certificates.
It is
equally clear that the 1965 Amendment specifically protects this substantial
governmental interest. We perceive no alternative means that would more
precisely and narrowly assure the continuing availability of issued Selective
Service certificates than a law which prohibits their wilful
mutilation or destruction. Compare Sherbert
v. Verner, 374 U.S. 398, 407 -408 (1963), and the cases cited therein. The
1965 Amendment prohibits such conduct and does nothing more. In other words,
both the governmental interest and the operation of the 1965 Amendment are
limited to the noncommunicative [391 U.S. 367, 382] aspect of O'Brien's conduct. The
governmental interest and the scope of the 1965 Amendment are limited to
preventing harm to the smooth and efficient functioning of the Selective
Service System. When O'Brien deliberately rendered unavailable his registration
certificate, he wilfully frustrated this governmental
interest. For this noncommunicative impact of his conduct, and for nothing
else, he was convicted.
The case
at bar is therefore unlike one where the alleged governmental interest in
regulating conduct arises in some measure because the communication allegedly
integral to the conduct is itself thought to be harmful. In Stromberg v.
California, 283 U.S. 359 (1931), for example, this Court struck down a
statutory phrase which punished people who expressed their "opposition to
organized government" by displaying "any flag, badge, banner, or
device." Since the statute there was aimed at suppressing communication it
could not be sustained as a regulation of noncommunicative conduct. See also,
NLRB v. Fruit & Vegetable Packers Union, 377 U.S. 58, 79 (1964) (concurring
opinion).
In
conclusion, we find that because of the Government's substantial interest in
assuring the continuing availability of issued Selective Service certificates,
because amended 462 (b) is an appropriately narrow means of protecting this
interest and condemns only the independent noncommunicative impact of conduct
within its reach, and because the noncommunicative impact of O'Brien's act of
burning his registration certificate frustrated the Government's interest, a
sufficient governmental interest has been shown to justify O'Brien's
conviction.
III.
O'Brien finally argues that the
1965 Amendment is unconstitutional as enacted because what he calls the
"purpose" of Congress was "to suppress freedom of [391 U.S. 367,
383] speech." We reject this
argument because under settled principles the purpose of Congress, as O'Brien
uses that term, is not a basis for declaring this legislation unconstitutional.
It is a familiar principle of
constitutional law that this Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative
motive. As the Court long ago stated:
"The
decisions of this court from the beginning lend no support whatever to the
assumption that the judiciary may restrain the exercise of lawful power on the
assumption that a wrongful purpose or motive has caused the power to be
exerted." McCray v. United States, 195 U.S. 27, 56 (1904).
This fundamental principle of
constitutional adjudication was reaffirmed and the
many cases were collected by Mr. Justice Brandeis for the Court in Arizona
v. California, 283 U.S. 423, 455 (1931).
Inquiries into congressional
motives or purposes are a hazardous matter. When the issue is simply the
interpretation of legislation, the Court will look to statements by legislators
for guidance as to the purpose of the legislature, 30 because the benefit to
sound decision-making in [391 U.S. 367, 384]
this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are
asked to void a statute that is, under well-settled criteria, constitutional on
its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about
a statute is not necessarily what motivates scores of others to enact it, and
the stakes are sufficiently high for us to eschew guesswork. We decline to void
essentially on the ground that it is unwise legislation which Congress had the
undoubted power to enact and which could be reenacted in its exact form if the
same or another legislator made a "wiser" speech about it.
O'Brien's position, and to some
extent that of the court below, rest upon a misunderstanding of Grosjean v.
American Press Co., 297 U.S. 233 (1936), and Gomillion
v. Lightfoot, 364 U.S. 339 (1960). These cases stand, not for the
proposition that legislative motive is a proper basis for declaring a statute
unconstitutional, but that the inevitable effect of a statute on its face may
render it unconstitutional. Thus, in Grosjean the Court, having concluded that
the right of publications to be free from certain kinds of taxes was a freedom
of the press protected by the First Amendment, struck down a statute which on
its face did nothing other than impose [391 U.S. 367, 385] just such a tax. Similarly, in Gomillion, the Court sustained a complaint which, if
true, established that the "inevitable effect," 364 U.S., at 341 , of
the redrawing of municipal boundaries was to deprive the petitioners of their
right to vote for no reason other than that they were Negro. In these cases,
the purpose of the legislation was irrelevant, because the inevitable effect -
the "necessary scope and operation," McCray v. United States,
195 U.S. 27, 59 (1904) - abridged constitutional rights. The statute attacked
in the instant case has no such inevitable unconstitutional effect, since the
destruction of Selective Service certificates is in no respect inevitably or
necessarily expressive. Accordingly, the statute itself is constitutional.
We think it not amiss, in passing,
to comment upon O'Brien's legislative-purpose argument. There was little floor
debate on this legislation in either House. Only Senator Thurmond commented on
its substantive features in the Senate. 111 Cong. Rec. 19746, 20433. After his
brief statement, and without any additional substantive comments, the bill, H.
R. 10306, passed the Senate. 111 Cong. Rec. 20434. In the House debate only two
Congressmen addressed themselves to the Amendment - Congressmen Rivers and Bray.
111 Cong. Rec. 19871, 19872. The bill was passed after their statements without
any further debate by a vote of 393 to 1. It is principally on
the basis of the statements by these three Congressmen that O'Brien
makes his congressional-"purpose" argument. We note that if we were
to examine legislative purpose in the instant case, we would be obliged to
consider not only these statements but also the more authoritative reports of
the Senate and House Armed Services Committees. The portions of those reports explaining
the purpose of the Amendment are reproduced in the Appendix in their entirety.
While both reports make clear a concern with the "defiant" [391 U.S.
367, 386] destruction of so-called
"draft cards" and with "open" encouragement to others to
destroy their cards, both reports also indicate that this concern stemmed from
an apprehension that unrestrained destruction of cards would disrupt the smooth
functioning of the Selective Service System.
IV.
Since the 1965 Amendment to 12 (b)
(3) of the Universal Military Training and Service Act is constitutional as
enacted and as applied, the Court of Appeals should have affirmed the judgment
of conviction entered by the District Court. Accordingly, we vacate the
judgment of the Court of Appeals, and reinstate the judgment and sentence of
the District Court. This disposition makes unnecessary consideration of
O'Brien's claim that the Court of Appeals erred in affirming his conviction on the basis of the nonpossession
regulation.1
It is so ordered.