United States v. O'Brien

391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, 1968 U.S. LEXIS 2910
Supreme Court of the United States·Decided May 27, 1968·No. 232·Published·Cited by 3,587 cases

Opinions

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.1 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.2 He did not contest the fact [370]*370that 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 commited by any person,

“who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . .” (Italics supplied.)

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.3 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 [371]*371Amendment 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.4 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).5 Wilful 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.6

[372]*372The 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 Second7 and Eighth Circuits8 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.9 He is assigned a Selective Service number,10 and within five days he is issued a [373]*373registration certificate (SSS Form No. 2).11 Subsequently, and based on a questionnaire completed by the registrant,12 he is assigned a classification denoting his eligibility for induction,13 and “[a]s soon as practicable” thereafter he is issued a Notice of Classification (SSS Form No. 110).14 This initial classification is not necessarily permanent,15 and if in the interim before induction the registrant’s status changes in some relevant way, he may be reclassified.16 After such a reclassification, the local board “as soon as practicable” issues to the registrant a new Notice of Classification.17

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.18

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 [374]*374contains the address of his local board and the date the certificate was mailed.

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United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, 1968 U.S. LEXIS 2910 (1968).

391 U.S. 367 (United States v. O'Brien) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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