391 U.S.

367
88 S.Ct. 1673
20 L.Ed.2d 672

UNITED STATES, Petitioner,

v.
David Paul O'BRIEN. David Paul O'BRIEN, Petitioner, v.
UNITED STATES.
Nos. 232, 233.
Argued Jan. 24, 1968.
Decided May 27, 1968.

[Syllabus from pages 367-368 intentionally omitted]

Solicitor Gen. Erwin N. Griswold for the United States.
Marvin M. Karpatkin, New York City, for David Paul O'Brien.
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 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.'

3

The indictment upon which he was tried charged that he 'willfully and
knowingly did multilate, 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 * * *.' (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 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.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

The Government petitioner 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 crosspetition. 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.
8

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 registration
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

10

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 contains the
address of his local board and the date the certificate was mailed.

11

Both the registration and classification certificates bear notices that the

11

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.

12

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 (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.

13

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. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75
L.Ed. 1117 (1931).21 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.

14

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.
15

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.'

16

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;22
substantial;23 subordinating;24 paramount;25 cogent;26 strong.27 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.

17

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.
Uniter States, 334 U.S. 742, 755 758, 68 S.Ct. 1294, 13011303, 92 L.Ed.
1694 (1948); Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed.
349 (1918); see also Ex parte Quirin, 317 U.S. 1, 2526, 63 S.Ct. 1, 910, 87

L.Ed. 3 (1942). The power of Congress to classify and conscript manpower for
military service is 'beyond question.' Lichter v. United States, supra, 334 U.S.
at 756, 68 S.Ct. at 1302; 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
to insure the continuing availability of issued certificates serves a legitimate and
substantial purpose in the system's administration.
18

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:

19

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 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.

20

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.

21

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.

22

4. The regulatory scheme involving Selective Service certificates includes

clearly valid prohibitions against the alteration, forgery, or similar deceptive
misuse of certificates. 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.

23

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 wilfully
destroy or mutilate them. And we are unpersuaded that the pre-existence of the
nonpossession regulations in any way negates this interest.

24

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, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (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.
25

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 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.

26

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.

27

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, 407408, 83 S.Ct.
1790, 17951796, 10 L.Ed.2d 965 (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 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.
28

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.
People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117
(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, 84 S.Ct. 1063, 1074, 12 L.Ed.2d 129 (1964)
(concurring opinion).

29

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.
30

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
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.

31

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:

32

'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, 24 S.Ct. 769, 776, 49 L.Ed.
78 (1904).

33

This fundamental principle of constitutional adjudication was reaffirmed and

the many cases were collected by Mr. Justice Brandeis for the Court in State of
Arizona v. State of California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed.
1154 (1931).

34

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 inthis 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.

35

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, 56 S.Ct.
444, 80 L.Ed. 660 (1936), and Gomillion v. Lighfoot, 364 U.S. 339, 81 S.Ct.
125, 5 L.Ed.2d 110 (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 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, 81 S.Ct. at 127, 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 effectthe 'necessary scope and operation,' McCray v. United States,
195 U.S. 27, 59, 24 S.Ct. 769, 777, 49 L.Ed. 78 (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.

36

We think it not amiss, in passing, to comment upon O'Brien's legislativepurpose 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 Congressment addressed
themselves to the AmendmentCongressmen 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'Brienmakes 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' 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.
37

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.31

38

It is so ordered.

39

Mr. Justice MARSHALL took no part in the consideration or decision of these

cases.

APPENDIX TO OPINION OF THE COURT.

40

PORTIONS OF THE REPORTS OF THE COMMITTEES ON ARMED

SERVICES OF THE SENATE AND HOUSE EXPLAINING THE 1965
AMENDMENT.

41

The 'Explanation of the Bill' in the Senate Report is as follows:

42

'Section 12(b)(3) of the Universal Military Training and Service Act of 1951, as
amended, provides, among other things, that a person who forges, alters, or
changes a draft registration certificate is subject to a fine of not more than
$10,000 or imprisonment of not more than 5 years, or both. There is no explicit
prohibition in this section against the knowing destruction or mutilation of such
cards.

43

'The committee has taken notice of the defiant destruction and mutilation of
draft cards by dissident persons who disapprove of national policy. If allowed
to continue unchecked this contumacious conduct represents a potential threat
to the exercise of the power to raise and support armies.

44

'For a person to be subject to fine or imprisonment the destruction or mutilation

of the draft card must be 'knowingly' done. This qualification is intended to
protect persons who lose or mutilate draft cards accidentally.' S.Rep. No. 589,
89th Cong., 1st Sess. (1965). And the House Report explained:

45

'Section 12(b)(3) of the Universal Military Training and Service Act of 1951, as
amended, provides that a person who forges, alters, or in any manner changes
his draft registration card, or any notation duly and validly inscribed thereon,
will be subject to a fine of $10,000 or imprisonment of not more than 5 years.
H.R. 10306 would amend this provision to make it apply also to those persons
who knowingly destroy or knowingly mutilate a draft registration card.

46

'The House Committee on Armed Services is fully aware of, and shares in, the
deep concern expressed throughout the Nation over the increasing incidences in
which individuals and large groups of individuals openly defy and encourage
others to defy the authority of their Government by destroying or mutilating
their draft cards.

47

'While the present provisions of the Criminal Code with respect to the
destruction of Government property may appear broad enough to cover all acts
having to do with the mistreatment of draft cards in the possession of
individuals, the committee feels that in the present critical situation of the
country, the acts of destroying or mutilating these cards are offenses which
pose such a grave threat to the security of the Nation that no question
whatsoever should be left as to the intention of the Congress that such wanton
and irresponsible acts should be punished.

48

'To this end, H.R. 10306 makes specific that knowingly mutilating or
knowingly destroying a draft card constitutes a violation of the Universal

Military Training and Service Act and is punishable thereunder; and that a
person who does so destroy or mutilate a draft card will be subject to a fine of
not more than $10,000 or imprisonment of not more than 5 years.' H.R.Rep.
No. 747, 89th Cong., 1st Sess. (1965) U.S. Congressional and Administrative
News, p. 2890.
49

Mr. Justice HARLAN, concurring.

50

The crux of the Court's opinion, which I join, is of course its general statement,
ante, at 377, that:

51

'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.'

52

I wish to make explicit my understanding that this passage does not foreclose
consideration of First Amendment claims in those rare instances when an
'incidental' restriction upon expression, imposed by a regulation which furthers
an 'important or substantial' governmental interest and satisfies the Court's other
criteria, in practice has the effect of entirely preventing a 'speaker' from
reaching a significant audience with whom he could not otherwise lawfully
communicate. This is not such a case, since O'Brien manifestly could have
conveyed his message in many ways other than by burning his draft card.

53

Mr. Justice DOUGLAS, dissenting.

54

The Court states that the constitutional power of Congress to raise and support
armies is 'broad and sweeping' and that Congress' power 'to classify and
conscript manpower for military service is 'beyond question." This is
undoubtedly true in times when, by declaration of Congress, the Nation is in a
state of war. The underlying and basic problem in this case, however, is
whether conscription is permissible in the absence of a declaration of war.1
That question has not been briefed nor was it presented in oral argument; but it
is, I submit, a question upon which the litigants and the country are entitled to a
ruling. I have discussed in Holmes v. United States, 390 U.S. 936, 88 S.Ct.
1835, the nature of the legal issue and it will be seen from my dissenting
opinion in that case that this Court has never ruled on the question. It is time
that we made a ruling. This case should be put down for reargument and heard

with Holmes v. United States and with Hart v. United States, 390 U.S. 956, 88
S.Ct. 1851, 20 L.Ed.2d 871, in which the Court today denies certiorari.2
55

The rule that this Court will not consider issues not raised by the parties is not
inflexible and yields in 'exceptional cases' (Duignan v. United States, 274 U.S.
195, 200, 47 S.Ct. 566, 71 L.Ed. 996) to the need correctly to decide the case
before the court. E.g., Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed.
1131.

56

In such a case it is not unusual to ask for reargument (Sherman v. United States,
356 U.S. 369, 379, n. 2, 78 S.Ct. 819, 2 L.Ed.2d 848, Frankfurter, J.,
concurring) even on a constitutional question not raised by the parties. In Abel
v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, the petitioner had
conceded that an administrative deportation arrest warrant would be valid for
its limited purpose even though not supported by a sworn affidavit stating
probable cause; but the Court ordered reargument on the question whether the
warrant had been validly issued in petitioner's case. 362 U.S., at 219, n., par. 1,
80 S.Ct. at 687; 359 U.S. 940, 79 S.Ct. 720, 3 L.Ed.2d 674. In Lustig v. United
States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819, the petitioner argued that an
exclusionary rule should apply to the fruit of an unreasonable search by state
officials solely because they acted in concert with federal officers (see Weeks
v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Byars v. United
States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520). The Court ordered reargument
on the question raised in a then pending case, Wolf v. People of State of
Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, applicability of the
Fourth Amendment to the States. U.S.Sup.Ct. Journal, October Term, 1947, p.
298. In Donaldson v. Read Magazine, 333 U.S. 178, 68 S.Ct. 591, 92 L.Ed.
628, the only issue presented, according to both parties, was whether the record
contained sufficient evidence of fraud to uphold an order of the Postmaster
General. Reargument was ordered on the constitutional issue of abridgment of
First Amendment freedoms. 333 U.S., at 181182, 68 S.Ct. at 593594;
Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U.S. 95,
96, 68 S.Ct. 397, 92 L.Ed. 562, reargument was ordered on the question of
unconstitutional vagueness of a criminal statute, an issue not raised by the
parties but suggested at oral argument by Justice Jackson. Journal, October
Term, 1947, p. 87.

57

These precedents demonstrate the appropriateness of restoring the instant case

to the calendar for reargument on the question of the constitutionality of a
peacetime draft and having it heard with Holmes v. United States and Hart v.
United States.

At the time of the burning, the agents knew only that O'Brien and his three
companions had burned small white cards. They later discovered that the card
O'Brien burned was his registration certificate, and the undisputed assumption
is that the same is true of his companions.

He was sentenced under the Youth Corrections Act, 18 U.S.C. 5010(b), to the
custody of the Attorney General for a maximum period of six years for
supervision and treatment.

The issue of the constitutionality of the 1965 Amendment was raised by

counsel representing O'Brien in a pretrial motion to dismiss the indictment. At
trial and upon sentencing, O'Brien chose to represent himself. He was
represented by counsel on his appeal to the Court of Appeals.

O'Brien v. United States, 376 F.2d 538 (C.A.1st Cir. 1967).

The portion of 32 CFR relevant to the instant case was revised as of January 1,
1967. Citations in this opinion are to the 1962 edition which was in effect when
O'Brien committed the crime, and when Congress enacted the 1965
Amendment.

The Court of Appeals nevertheless remanded the case to the District Court to
vacate the sentence and resentence O'Brien. In the court's view, the district
judge might have considered the violation of the 1965 Amendment as an
aggravating circumstance in imposing sentence. The Court of Appeals
subsequently denied O'Brien's petition for a rehearing, in which he argued that
he had not been charged, tried, or convicted for nonpossession, and that
nonpossession was not a lesser included offense of mutilation or destruction.
O'Brien v. United States, 376 F.2d 538, 542 (C.A.1st Cir. 1967).

United States v. Miller, 367 F.2d 72 (C.A.2d Cir. 1966), cert. denied, 386 U.S.
911, 87 S.Ct. 855, 17 L.Ed.2d 787 (1967).

Smith v. United States, 368 F.2d 529 (C.A.8th Cir. 1966).

See 62 Stat. 605, as amended, 65 Stat. 76, 50 U.S.C. App. 453; 32 CFR
1613.1 (1962).

10

32 CFR 1621.2 (1962).

11

32 CFR 1613.43a (1962).

12

32 CFR 1621.9, 1623.1 (1962).

13

32 CFR 1623.1, 1623.2 (1962).

14

32 CFR 1623.4 (1962).

15

32 CFR 1625.1 (1962).

16

32 CFR 1625.1, 1625.2, 1625.3, 1625.4, and 1625.11 (1962).

17

32 CFR 1625.12 (1962).

18

32 CFR 1621.2 (1962).

19

32 CFR 1617.1 (1962), provides, in relevant part:

'Every person required to present himself for and submit to registration must,
after he is registered, have in his personal possession at all times his
Registration Certificate (SSS Form No. 2) prepared by his local board which
has not been altered and on which no notation duly and validly inscribed
thereon has been changed in any manner after its preparation by the local board.
The failure of any person to have his Registration Certificate (SSS Form No. 2)
in his personal possession shall be prima facie evidence of his failure to
register.'

20

32 CFR 1623.5 (1962), provides, in relevant part:

'Every person who has been classified by a local board must have in his
personal possession at all times, in addition to his Registration Certificate (SSS
Form No. 2), a valid Notice of Classification (SSS Form No. 110) issued to him
showing his current classification.'

21

See text, infra, at 382.

22

NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405
(1963); see also Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10
L.Ed.2d 965 (1963).

23

NAACP v. Button, 371 U.S. 415, 444, 83 S.Ct. 328, 343, 9 L.Ed.2d 405
(1963); NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 464, 78
S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

24

Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d
480 (1960).

25

Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945);
see also Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d

965 (1963).
26

Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d
480 (1960).

27

Sherbert v. Verner, 374 U.S. 398, 408, 83 S.Ct. 1790, 1796, 10 L.Ed.2d 965
(1963).

28

Cf. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773
(1961); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407
(1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370
(1957).

29

Cf. Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773
(1961); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407
(1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370
(1957).

30

The Court may make the same assumption in a very limited and well-defined
class of cases where the very nature of the constitutional question requires an
inquiry into legislative purpose. The principal class of cases is readily apparent
those in which statutes have been challenged as bills of attainder. This
Court's decisions have defined a bill of attainder as a legislative Act which
inflicts punishment on named individuals or members of an easily ascertainable
group without a judicial trial. In determining whether a particular statute is a
bill of attainder, the analysis necessarily requires an inquiry into whether the
three definitional elementsspecificity in identification, punishment, and lack
of a judicial trialare contained in the statute. The inquiry into whether the
challenged statute contains the necessary element of punishment has on
occasion led the Court to examine the legislative motive in enacting the statute.
See, e.g., United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252
(1946). Two other decisions not involving a bill of attainder analysis contain an
inquiry into legislative purpose or motive of the type that O'Brien suggests we
engage in in this case. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169
184, 83 S.Ct. 554, 568575, 9 L.Ed.2d 644 (1963); Trop v. Dulles, 356 U.S.
86, 9597, 78 S.Ct. 590, 595596, 2 L.Ed.2d 630 (1958). The inquiry into
legislative purpose or motive in Kennedy and Trop, however, was for the same
limited purpose as in the bill of attainder decisionsi.e., to determine whether
the statutes under review were punitive in nature. We face no such inquiry in
this case. The 1965 Amendment to 462(b) was clearly penal in nature,
designed to impose criminal punishment for designated acts.

31

The other issues briefed by O'Brien were not raised in the petition for certiorari
in No. 232 or in the cross-petition in No. 233. Accordingly, those issues are not

before the Court.

1

Neither of the decisions cited by the majority for the proposition that Congress'
power to conscript men into the armed services is "beyond question" concerns
peacetime conscription. As I have shown in my dissenting opinion in Holmes v.
United States, 391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856, the Selective Draft
Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, decided in 1918, upheld
the constitutionality of a conscription act passed by Congress more than a
month after war had been declared on the German Empire and which was then
being enforced in time of war. Lichter v. United States, 334 U.S. 742, 68 S.Ct.
1294, 92 L.Ed. 1694, concerned the constitutionality of the Renegotiation Act,
another wartime measure, enacted by Congress over the period of 19421945
(id., at 745, n. 1, 68 S.Ct. at 1297) and applied in that case to excessive war
profits made in 19421943 (id., at 753, 68 S.Ct. at 1300). War had been
declared, of course, in 1941 (55 Stat. 795). The Court referred to Congress'
power to raise armies in discussing the 'background' (334 U.S., at 753, 68 S.Ct.,
at 1300) of the Renegotiation Act, which it upheld as a valid exercise of the
War Power.

Today the Court also denies stays in Shiffman v. Selective Service Local Board
No. 5, 391 U.S. 930, 88 S.Ct. 1831, 20 L.Ed.2d 849, and Zigmond v. Selective
Service Local Board No. 16, 391 U.S. 930, 88 S.Ct. 1831, 20 L.Ed.2d 851,
where punitive delinquency regulations are invoked against registrants,
decisions that present a related question.