SPRECHER, Circuit Judge.
This appeal reheard en banc requires us to focus closely upon the dividing line between presumptive regularity in the enforcement of penal laws and impermissible prosecutorial selectivity.
Jeffrey Falk was charged in a four-count indictment with refusing to submit to induction into the Armed Forces and with failure to possess a registration card or his 1968 and 1969 I-A clas-[618]*618sifieation cards, all in violation of 50 U. S.C. App. § 462. The defendant filed a pretrial motion to dismiss those counts of the indictment charging him with failure to possess the proper cards on the ground that the prosecution sought the indictment for the improper purpose of chilling the exercise of rights guaranteed by the First Amendment and to punish him for participation in a draft counseling organization. The trial judge denied the motion without holding an evidentiary hearing. At trial, an offer of proof based on the same contention was similarly rejected. A jury found Falk guilty on all four counts, but the district court granted a post-trial motion for acquittal on count one on the ground that there had been no basis in fact for denying Falk classification as a conscientious objector. He received three consecutive one year sentences on the card-carrying counts.
On appeal, a panel of this court affirmed Falk’s conviction, one judge dissenting. United States v. Falk, 472 F.2d 1101 (7th Cir. 1972). A petition for rehearing en banc was granted, in which the principal issue was the alleged discriminatory prosecutorial purpose in seeking the indictment. We have concluded that Falk is entitled to a hearing on his charge of an improper purpose. We accordingly reverse.
The Fourteenth Amendment prohibits any state from taking action which would “deny to any person within its jurisdiction the equal protection of the laws.” This admonition is applicable to the federal government through the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Washington v. United States, 130 U.S.App.D.C. 374, 401 F. 2d 915, 922 (1968). The promise of equal protection of the laws is not limited to the enactment of fair and impartial legislation, but necessarily extends to the application of these laws. The basic principle was stated long ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886):
“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimina-tions between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”
The city ordinance for which violation Yick Wo was convicted made it unlawful for any person to maintain a laundry in the city of San Francisco without first obtaining the permission of the board of supervisors unless the laundry were located in a building constructed of brick or stone. Although the statute was, on its face, a fair and reasonable exercise of the police power, the facts showed that principally Chinese were refused permission to continue using wooden facilities. The Supreme Court held that criminal enforcement of the law was therefore illegal.
Yick Wo was concerned with an abuse of discretion in the administration of a public ordinance by a city licensing board, and not with the activities of law enforcement officials who presumably prosecuted all Chinese who violated the commands of the licensing board. The underlying principle has nevertheless been properly held to apply to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown, Inc. v. McGinley, District Attorney, 366 U.S. 582, 588, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961);1 United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972);2 [619]*619United States v. Crowthers, 456 F.2d 1074, 1080 (4th Cir. 1972); Shock v. Tester, 405 F.2d 852, 855 (8th Cir. 1969); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 924 (1968); Moss v. Hornig, 314 F.2d 89, 92-93 (2d Cir. 1963); People v. Walker, 14 N.Y.2d 901, 252 N.Y.S.2d 96, 200 N.E.2d 779 (1964); People v. Gray, 254 Cal.App.2d 256, 63 Cal.Rptr. 211 (1967); People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852 (1960). Cf., Littleton v. Berbling, 468 F.2d 389 at 410 (7th Cir. 1972).
Despite the seemingly undeniable application of Yick Wo to discriminatory prosecutions,3 two questions have troubled various courts and appear to be the source of the disagreement between the .majority and dissenters on this court. I The first of these arises from the decision in Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962), in which the Court noted that the “conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation,” and went on to state that since it had not been alleged “that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification” there were no grounds to support a finding that the equal protection clause had been violated. From this it is argued that a person attempting to defend against the discriminatory enforcement of a law must show that he is a member of a class against which the law is being selectively enforced. See, e. g., United States v. Falk, supra, 472 F. 2d at 1106-1108; “Supreme Court, 1961 Term,” 76 Harv.L.Rev. 54; 120-121 (1962).4 We agree with Judge Lumbard in Moss v. Hornig, supra, 314 F.2d at 93, that Oyler does not preclude the granting of relief against intentional or purposeful discrimination against an individual. No intentional discrimination against the petitioner as an individual was alleged by Oyler and he merely attempted to show, by statistical evidence, that fewer than all multiple offenders were given heavier sentences; In the present case intentional discrimination is alleged. Cf., Furman v. Georgia, 408 U.S. 238, 257, 293-295, 92 S.Ct. 2726, 2736, 33 L.Ed.2d 346 (Brennan, J., concurring), 408 U.S. 238, 306, 309-310, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring); Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Weisberg v. Powell, 417 F.2d 388, 392 (7th Cir. 1969).
Falk’s allegations indicate that he was singled out for selective and discriminatory treatment on the basis of activities which form an unjustifiable standard for selectivity in prosecution. Falk was an active member of a draft counseling organization known as the Chicago Area Draft Resisters. In his pretrial motion and again in his offer of proof he asserted that the prosecution against him for violation of the card-carrying requirements was brought not because he had violated the statute but to punish him for and stifle his and others’ participation in protected First [620]
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SPRECHER, Circuit Judge.
This appeal reheard en banc requires us to focus closely upon the dividing line between presumptive regularity in the enforcement of penal laws and impermissible prosecutorial selectivity.
Jeffrey Falk was charged in a four-count indictment with refusing to submit to induction into the Armed Forces and with failure to possess a registration card or his 1968 and 1969 I-A clas-[618]*618sifieation cards, all in violation of 50 U. S.C. App. § 462. The defendant filed a pretrial motion to dismiss those counts of the indictment charging him with failure to possess the proper cards on the ground that the prosecution sought the indictment for the improper purpose of chilling the exercise of rights guaranteed by the First Amendment and to punish him for participation in a draft counseling organization. The trial judge denied the motion without holding an evidentiary hearing. At trial, an offer of proof based on the same contention was similarly rejected. A jury found Falk guilty on all four counts, but the district court granted a post-trial motion for acquittal on count one on the ground that there had been no basis in fact for denying Falk classification as a conscientious objector. He received three consecutive one year sentences on the card-carrying counts.
On appeal, a panel of this court affirmed Falk’s conviction, one judge dissenting. United States v. Falk, 472 F.2d 1101 (7th Cir. 1972). A petition for rehearing en banc was granted, in which the principal issue was the alleged discriminatory prosecutorial purpose in seeking the indictment. We have concluded that Falk is entitled to a hearing on his charge of an improper purpose. We accordingly reverse.
The Fourteenth Amendment prohibits any state from taking action which would “deny to any person within its jurisdiction the equal protection of the laws.” This admonition is applicable to the federal government through the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Washington v. United States, 130 U.S.App.D.C. 374, 401 F. 2d 915, 922 (1968). The promise of equal protection of the laws is not limited to the enactment of fair and impartial legislation, but necessarily extends to the application of these laws. The basic principle was stated long ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886):
“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimina-tions between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”
The city ordinance for which violation Yick Wo was convicted made it unlawful for any person to maintain a laundry in the city of San Francisco without first obtaining the permission of the board of supervisors unless the laundry were located in a building constructed of brick or stone. Although the statute was, on its face, a fair and reasonable exercise of the police power, the facts showed that principally Chinese were refused permission to continue using wooden facilities. The Supreme Court held that criminal enforcement of the law was therefore illegal.
Yick Wo was concerned with an abuse of discretion in the administration of a public ordinance by a city licensing board, and not with the activities of law enforcement officials who presumably prosecuted all Chinese who violated the commands of the licensing board. The underlying principle has nevertheless been properly held to apply to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown, Inc. v. McGinley, District Attorney, 366 U.S. 582, 588, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961);1 United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972);2 [619]*619United States v. Crowthers, 456 F.2d 1074, 1080 (4th Cir. 1972); Shock v. Tester, 405 F.2d 852, 855 (8th Cir. 1969); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 924 (1968); Moss v. Hornig, 314 F.2d 89, 92-93 (2d Cir. 1963); People v. Walker, 14 N.Y.2d 901, 252 N.Y.S.2d 96, 200 N.E.2d 779 (1964); People v. Gray, 254 Cal.App.2d 256, 63 Cal.Rptr. 211 (1967); People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852 (1960). Cf., Littleton v. Berbling, 468 F.2d 389 at 410 (7th Cir. 1972).
Despite the seemingly undeniable application of Yick Wo to discriminatory prosecutions,3 two questions have troubled various courts and appear to be the source of the disagreement between the .majority and dissenters on this court. I The first of these arises from the decision in Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962), in which the Court noted that the “conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation,” and went on to state that since it had not been alleged “that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification” there were no grounds to support a finding that the equal protection clause had been violated. From this it is argued that a person attempting to defend against the discriminatory enforcement of a law must show that he is a member of a class against which the law is being selectively enforced. See, e. g., United States v. Falk, supra, 472 F. 2d at 1106-1108; “Supreme Court, 1961 Term,” 76 Harv.L.Rev. 54; 120-121 (1962).4 We agree with Judge Lumbard in Moss v. Hornig, supra, 314 F.2d at 93, that Oyler does not preclude the granting of relief against intentional or purposeful discrimination against an individual. No intentional discrimination against the petitioner as an individual was alleged by Oyler and he merely attempted to show, by statistical evidence, that fewer than all multiple offenders were given heavier sentences; In the present case intentional discrimination is alleged. Cf., Furman v. Georgia, 408 U.S. 238, 257, 293-295, 92 S.Ct. 2726, 2736, 33 L.Ed.2d 346 (Brennan, J., concurring), 408 U.S. 238, 306, 309-310, 92 S.Ct. 2726, 2760, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring); Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Weisberg v. Powell, 417 F.2d 388, 392 (7th Cir. 1969).
Falk’s allegations indicate that he was singled out for selective and discriminatory treatment on the basis of activities which form an unjustifiable standard for selectivity in prosecution. Falk was an active member of a draft counseling organization known as the Chicago Area Draft Resisters. In his pretrial motion and again in his offer of proof he asserted that the prosecution against him for violation of the card-carrying requirements was brought not because he had violated the statute but to punish him for and stifle his and others’ participation in protected First [620]*620Amendment activities in opposition to the draft and the war in Vietnam. There can be no doubt but that the expression of views opposing this country’s foreign policy with regard to Vietnam is protected by the First Amendment. Schacht v. United States, 398 U. S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). And, just as discrimination on the basis of religion or race is forbidden by the Constitution, so is discrimination on the basis of the exercise of protected First Amendment activities, whether done as an individual or, as in this case, as a member of a group unpopular with the government.
Similar results have been reached in two recent cases. The most recent, United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), involved a conviction for refusing to answer questions in a census report in violation of 13 U.S.C. § 221(a). The defendant argued that he had been deliberately selected for prosecution because of his participation in a census resistance movement. The Court of Appeals for the Ninth Circuit agreed that there was evidence that Steele had been singled out for prosecution on the basis of his exercise of First Amendment rights and concluded that his conviction could not stand under Oyler and Yick Wo.
Convictions were also reversed in United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972), on a finding that an unlawful and discriminatory purpose precipitated the indictments. The arrests in that case were for violations of a disorderly conduct regulation which prohibited loud and unusual noise and obstruction of passageways and a regulation forbidding the distribution of handbills without prior permission of the federal agency ir/ whose space the material was to be distributed.5
The second source of disagreement among some courts and within this court concerns the problem of proof. Certainly, the prospect of government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives in seeking an indictment is to be avoided. That does not mean that a criminal defendant is never to be afforded an opportunity to prove that the prosecution stems from an improper prosecutorial design or that he may never question a prosecutor under oath. The presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice. However, when a defendant alleges intentional purposeful discrimination and presents facts sufficient to raise a reasonable doubt about [621]*621the prosecutor’s purpose, we think a different question is raised.
Defendant in this case twice attempted to present evidence which would have shown an impermissible prosecutorial purpose. In his pretrial motion for dismissal of those counts of the indictment charging violations of the card possession requirements, the defendant expressed his belief that over 25,000 Selective Service registrants had dispossessed themselves of their draft cards without criminal sanction, and sought an evidentiary hearing at which he would submit evidence in proof of his allegations. In his motion for acquittal at the close of the government’s case, Falk again attempted to show that the government was aware of many violations and that others were not being prosecuted, citing the policy statement of Lt. General Louis B. Hershey, Director, Selective Service System, Legal Aspects of Selective Service 47 (January 1, 1969, U.S. Government Printing Office), which states in relevant part:
"The escalation of the United States involvement in Vietnam increased the draft calls, and there was an upsurge of public demonstrations in protest. Some of these protests took the form of turning ‘draft’ cards in to various public officials of the Department of Justice, the State or National Headquarters of Selective Service System, or directly to local boards. By agreement with the Department of Justice, registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted under Section 12(a) of the Military Selective Service Law of 1967, but were processed administratively by the local boards.” (Emphasis added.)
The Hershey statement goes on to say that many of these protesters were classified I-A, a policy which the Supreme Court found unacceptable in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). It is, of course, possible that following the Gut-knecht decision, the government changed its policy on non-prosecution. However, in view of its admitted policy not to prosecute prior to that decision we believe that in the particular circumstances of the instant case it was incumbent upon the government to come forward with evidence that it had in fact changed its policy generally or otherwise to explain why Falk was being singled out for prosecution in contravention of the government’s own procedures^
The particular circumstances of this case which we believe compelled the government to accept the burden of proving nondiscriminatory enforcement of the law are several. Falk was, as noted earlier, actively involved in advising others on methods of legally avoiding military service and in protesting American actions in Vietnam. Similar circumstances, in which a vocal dissenter appeared to have been singled out for prosecution, led the court in United States v. Steele, supra, 461 F.2d at 1152, to hold that “[a]n enforcement procedure that focuses upon the vocal offender is inherently suspect, since it is vulnerable to the charge that those chosen for prosecution are being punished for their expression of ideas, a constitutionally protected right.” In the present case there are several indications that this was exactly the purpose of the prosecution. At the close of the trial Falk’s attorney asked that the Assistant United States Attorney who tried the case be called as a witness, and offered to prove that the Assistant United States Attorney had told Falk’s attorney at a meeting in December, 1970, that he knew of defendant’s draft counseling activities, that a good deal of their trouble in enforcing the draft laws came from people such as Falk, that few indictments were brought for non-possession of draft cards, that defendant’s draft-counseling activity was one of the reasons why the prosecution for non-possession of draft cards was brought, and that the government would not dismiss the card-carrying counts of the indictment even though Falk agreed to carry the cards in the future. The court refused the offer [622]*622of proof but did allow the Assistant United States Attorney to make a reply. We think the unsolicited reply is itself some evidence that Falk was singled out for special prosecution. Apparently in an effort to show that his own participation in the process of deciding to prosecute was inconsequential, the Assistant noted that the indictment against Falk was approved not only by him, but also by the Chief of the Criminal Division of the United States Attorney’s Office, the First Assistant United States Attorney, the United States Attorney and the Department of Justice in Washington. It is difficult to believe that the usual course of proceedings in a draft ease requires such careful consideration by such a distinguished succession of officials prior to a formal decision to prosecute.
The particular circumstances of this case which overcome the initial presumption of legal regularity in enforcement of penal laws also includes the lengthy delay in bringing the indictment. Falk returned his registration card to the Department of Justice on December 4, 1967, mailed his I-A classification notice to Federal District Judge Hubert Will in October, 1968 and sent a later notice of classification to his draft board in May, 1969. The government therefore had notice of his violations of the regulations from December, 1967. Yet the indictment charging violations of the card possession requirements was not returned until almost three years had passed, in October of 1970, following Falk’s refusal to submit to induction in May of that year. Some explanation for the delay in prosecution for the earlier offenses may be found in a statement of policy by the Director of the Selective Service System:
“Selective Service Regulations are designed to delay the prosecution of a violator of the law until after he has failed to report for or refused to submit to induction or assigned civilian work. This is to prevent, wherever possible, prosecutions for minor infractions of rules during his selective service processing, thereby reducing the number of cases that reach the courts and also giving the registrant, before being prosecuted, an opportunity to report for service in the armed forces. Since the purpose of the law is to provide men for the military establishment rather than for the penitentiaries, it would seem that when a registrant is willing to be inducted, he should not be prosecuted for minor offenses committed during his processing. The result of this procedure is that the great majority of prosecutions involve the failure to report for or refusal to submit to induction or assigned civilian work.” Legal Aspects of Selective Service, supra, 46-47. (Emphasis added.)
Although this statement would seem to provide a valid, and even in some cases benevolent, explanation for a delay of up to three years in bringing the indictment, it also adds forceful weight to defendant’s contention that the prosecution in this case was for the purpose of punishing Falk for his exercise of First Amendment rights. According to this statement, it is government policy to prosecute only a portion of those who commit “minor infractions of rules;” whether a violator is one of those prosecuted depends upon whether he accepts or refuses induction. We may assume, at least for purposes of this case, that a general decision to prosecute those who refuse induction on grounds which will support a conviction to the exclusion of those who agree to cooperate with the Selective Service in the future is within the prosecutor’s discretion. The problem in this case, however, is that Falk was found to have been justified in refusing induction in that he was entitled to classification as a conscientious objector. The result is that he faces three years’ imprisonment because his local draft board arbitrarily and without grounds to so act refused his claim as a conscientious objector and he was forced to refuse induction in order to assert a valid claim, thereby also incurring prosecution for prior “minor infractions.” [623]*623The conclusion would seem to be compelling that, in the admitted policy of the Selective Service officials and apart from whether Falk’s draft counseling activities were involved in the decision to prosecute, he was indicted and prosecuted for violation of the card possession requirements only because he exercised his First Amendment privilege to claim a statutory right as a conscientious objector. But “[i]t is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and' which will not or to engage in invidious discrimination among persons or groups ... by selective enforcement of an extremely broad prohibitory statute.” Cox v. Louisiana, 379 U.S. 536, 557-558, 85 S.Ct. 453, 466 (1965); United States v. Crowthers, supra, 456 F.2d at 1080. See also Schacht v. United States, supra.
Punishment of Falk, however valid otherwise, only because he chose to assert his right as a conscientious objector, is very similar to the conduct of city officials who reinstated criminal charges for alleged traffic violations following the defendant’s action in filing an official complaint charging police misconduct in Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966, 968 (1968). Chief Judge Bazelon, in reversing the defendant’s conviction on those charges, stated:
“The Government may not prosecute for the purpose of deterring people from exercising their right to protest official misconduct and petition for redress of grievances. Moreover, a prosecution under such circumstances would be barred by the equal protection clause, since the Government employs an impermissible classification when it punishes those who complain against police misconduct and excuses those who do not.”
Similarly, the government is not free to punish those who refuse to acquiesce in a local draft board’s irrational refusal to give a conscientious objector his proper classification while it excuses those who, however much their decision may conflict with moral principles, agree to submit to induction.
To summarize, the combination in this case of the published government policy not to prosecute violators of the card possession regulations, Falk’s status as an active and vocal dissenter to United States policy with regard to the draft and the Vietnam War, the Assistant United States Attorney’s statement that officials ranging from an Assistant Attorney to the Department of Justice in Washington participated in the decision to prosecute Falk, the untimely delay in bringing the indictment and the government’s stated policy to prosecute only those who refuse induction while absolving those who submit to the will of the authorities, lead us to conclude that the district court erred in refusing a hearing on the offer of proof. . The unrebut-ted evidence before the court, including the admission of the Assistant United States Attorney and the two published statements by the Selective Service officials which contradict the propriety of the action taken in this case, made out at least a prima facie case of improper discrimination in enforcing the law. We will therefore remand the case, to a different judge, for a hearing at which time Falk may question the Assistant United States Attorney as to the content of his previous statements to defendant’s counsel6 and present any additional evidence he wishes on the is'sue of other alleged violators and the govern[624]*624ment’s lack of general enforcement. In accordance with our holding that a pri-ma facie case has already been presented, and in agreement with United States v. Crowthers, supra, however, the burden of going forward with proof of nondiscrimination will then rest on the government. Particularly with regard to the seemingly inherent discrimination against Falk in prosecuting him for insisting on his claim as a conscientious objector, we think the government will be required to present compelling evidence to the contrary if its burden is to be met. If the district court finds that the prosecution was not the result of a purpose to punish Falk for exercising First Amendment rights as a draft counselor and Vietnam protestor and is also satisfied that the government has not made an invidious discrimination between violators who acquiesce to the power of the Selective Service System and those who continue to assert their rights to be classified as conscientious objectors, the conviction will stand. If the court finds that Falk would not have been prosecuted for violation of the card possession requirements except for his assertion of a conscientious objector claim or his draft counseling and lawful protest activities, the indictment must be dismissed.
In conclusion, we wish to note our disapproval of the apparently frequent, and often too easy, practice of simply dismissing all allegations of illegal discrimination in the enforcement of criminal laws with a reference to Oyler v. Boles, supra, and its statement that the conscious exercise of some selectivity in the enforcement of laws does not violate the Constitution. That correct principle does not in many cases answer the question whether selective enforcement in a given case is invidious discrimination which cannot be reconciled with the principles of equal protection. As Judge Cummings reminded us in Stamler v. Willis, 415 F.2d 1365, 1369-1370 (7th Cir. 1969), cert. denied, Ichord v. Stamler, 399 U.S. 929, 90 S.Ct. 2231, 26 L. Ed.2d 796 (1970), “[t]he judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government.”
We note finally that United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and Gutknecht v. United States, supra, do not in any way conflict with our holding in this case. The Supreme Court in O’Brien held that the First Amendment could not be interposed as a barrier to conviction for wilful destruction of a draft card. The issue in that case was whether the burning of a draft card was within the protection accorded “speech” or whether conduct was also an element. The issue of discriminatory prosecutions for violation of Selective Service regulations was not before the Court. Furthermore, O’Brien was concerned with the separate prohibition on wilful destruction of draft cards. But the Selective Service System has apparently always taken a different attitude toward public mutilation of these cards. In the excerpt from the Selective Service manual quoted earlier in this opinion, the Director of the Selective Service System stated only that “registrants who turned in cards (as contrasted to those who burned cards) were not prosecuted . . . .”
In' the Gutknecht case, the Supreme Court held that the Military Selective Service Act of 1967 did not permit Selective Service officials to deprive registrants of their normal order of call in retaliation for violation of the card possession requirements, stating that criminal sanctions were the sole sanction permitted by Congress. Again, the Court was not concerned with the legality of even criminal sanctions resulting from selective unjustifiable discrimination in enforcement of the law.
Judgment of conviction vacated and cause remanded.