United States v. Miller, 463

• Decision Date: 13 October 1966
• Docket Number: Docket 30465.,No. 463,463
• Citation: 367 F.2d 72
• Parties: UNITED STATES of America, Appellee, v. David J. MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

367 F.2d 72 (1966)

UNITED STATES of America, Appellee, v. David J. MILLER, Defendant-Appellant.

No. 463, Docket 30465.

United States Court of Appeals Second Circuit.

Argued June 22, 1966.

Decided October 13, 1966.

Marvin M. Karpatkin and Osmond K. Fraenkel, New York City (Henry M. diSuvero, Nanette Dembitz, Rhoda H. Karpatkin, Carl Rachlin, Melvin L. Wulf, Alan H. Levine, New York City, on the brief), for defendant-appellant.

Peter Fleming, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, John Sprizzo, Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, Chief Judge, and MOORE and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

This case raises perplexing issues of whether symbolic conduct is speech embraced by the First Amendment and the extent of its protection thereunder. The appeal challenges the constitutionality of a federal statute prohibiting the destruction of Selective Service certificates; the ultimate question before the court is the power of Congress to enact the legislation. The constitutional issues are raised by David J. Miller, who appeals from a judgment convicting him of knowingly destroying a Selective Service System Notice of Classification. Appellant was tried without a jury before Judge Tyler in the Southern District of New York. Taking into account Miller's sincerity and background, the judge suspended execution of a sentence of three years' imprisonment and placed appellant on two years' probation.¹ We hold the statute constitutional and affirm the conviction.

I. The Statute and the Facts

Appellant was convicted of violating section 12(b) (3) of the Universal Military Service and Training Act ("the Act"), as amended by 79 Stat. 586 (1965), 50 U.S.C.App. § 462(b) (3) (Supp. I, 1965). In August 1965, that section was amended to prohibit the knowing destruction or mutilation of a Selective Service certificate; the amended statute was the basis of appellant's conviction.² Judge Tyler found it undisputed that on October 15, 1965, at a street rally near the Army Building at 39 Whitehall Street in Manhattan, appellant burned his "draft card."³ Appellant performed this act in the course of giving a speech; he believed the burning to be a symbolic protest against the draft, the military action in Vietnam, and "the draft card burning law itself." The court further found that other methods of speech used at the rally, although less dramatic than appellant's action, served as reasonably effective communication of the ideas involved.⁴ Before considering appellant's arguments, it is instructive to examine the history of the statute under discussion.

Even prior to the August 1965 amendment, section 12(b) of the Act stringently regulated the physical certificates issued by the Selective Service System. It was thus illegal — with improper intent — to transfer a certificate to aid a person in making a false identification or representation, or to possess a certificate not duly issued to oneself for those purposes, or to forge, alter "or in any manner" change a certificate or any notation validly inscribed thereon, or to photograph or make an imitation of a certificate for false identification purposes, or to possess a counterfeited or altered certificate. In addition, under the authority delegated him by Congress (section 10(b)(1) of the Act), the President had promulgated a regulation requiring those who have been classified by a local board to have in their personal possession at all times the Notice of Classification (SSS Form No. 110), except when entering upon active duty into the Armed Forces, when the certificate must be surrendered for destruction. 32 C.F.R. § 1623.5 (1962). Violation of this regulation was made a felony by section 12(b)(6) of the Act.⁵

The Notice of Classification itself is a white card, about the thickness of a postcard, and about two inches by three inches in size. The front of the Notice burned by appellant was in the following form:

The Registration Certificate referred to (SSS Form No. 2) is given to all Selective Service registrants when they register; important information contained on the Notice of Classification does not appear on the Registration Certificate, i. e., the registrant's classification, who classified him, and the vote, if by an Appeal Board. These facts do not develop until after a registrant has received Form No. 2. See 32 C.F.R. §§ 1617.1, 1622.1(c), 1623.1(a) (1962); Forkosch, supra note 4, at 303-04. See also 32 C.F.R. § 1627.3 (Supp.1966) (significance of vote).

To summarize, the Act and a regulation, even before the 1965 amendment was passed, required the Notice containing a registrant's classification to be in his possession at all times, and imposed stringent penalties for tampering with the certificate and in other ways subjecting it to abuse.

II. Constitutional Arguments

Since appellant does not claim here that he did not violate the statute — nor is there any room for doubt on this score — and since no procedural infirmities are raised, we turn to the constitutional arguments advanced. Appellant contends that the 1965 amendment is unconstitutional (1) on its face, because its legislative history establishes that it was enacted deliberately to suppress dissent; (2) as applied to the facts of this case, because the conduct it punishes this defendant for is symbolic speech protected by the First Amendment; and (3) under the Fifth Amendment, because it serves no rational legislative purpose.⁶

As to the first contention, going behind the terms of a statute to divine the collective legislative motive for its enactment is rarely, if ever, done by a court. Thus, in Sonzinsky v. United States, 300 U.S. 506, 513-514, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937), the Supreme Court stated that "inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts." See Barenblatt v. United States, 360 U.S. 109, 132, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); United States v. Kahriger, 345 U.S. 22, 27, 73 S.Ct. 510, 97 L.Ed. 754 (1953) (allegation that improper motive was revealed in legislative history); Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 224, 69 S.Ct. 550, 93 L.Ed. 632 (1949). Ordinarily, if Congress has power to act in a field, judicial inquiry ends so long as the statute does not on its face infringe a constitutional right.⁷ The 1965 amendment appears to meet this test. Congress clearly has power under Article I, section 8 of the Constitution to "raise and support Armies," and the Universal Military Training and Service Act and the 1965 amendment thereto are, in their terms, proper exercises of that power. See Lichter v. United States, 334 U.S. 742, 756-758 n. 4, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918). On its face, the amended statute here attacked concerns administration of the draft, not regulation of ideas or the means of communicating them. This distinguishes such cases as Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), and Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), relied on by appellant.

To prove the "real" congressional purpose of the 1965 amendment, appellant resorts to its legislative history, a source frequently used to construe the terms of a statute. But that history is inconclusive. Even though portions — particularly remarks by two Representatives (including the sponsor of the bill in the House) — indicate a desire to suppress political dissent, the more authoritative committee reports also show a concern that destruction of draft cards "represents a potential threat to the exercise of the power to raise and support armies."⁸ It may even be conceded that the amendment was prompted by widely publicized burnings of draft cards occurring in demonstrations against this country's Vietnam policy.⁹ But neither does that control disposition of the case. People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, appeal dismissed, 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107 (1963), involved a bizarre display of offensive objects on a clothesline in a residential area to protest high property taxes. Thereafter, the City of Rye enacted an ordinance which, in effect, prohibited clotheslines in a front or side yard abutting a street. On appeal from a conviction for violation of the ordinance, the New York Court of Appeals said (per Fuld, J., 12 N.Y.2d at 466, 240 N.Y.S.2d at 736, 191 N.E.2d at 274):

It is a fair inference that adoption of the ordinance before us was prompted by the conduct and action of the defendants but we deem it clear that, if the law would otherwise be held constitutional, it will not be stricken as discriminatory or invalid because of its motivation. (Cf. Town of Hempstead v. Goldblatt, 9 N Y 2d 101 211 N.Y.S.2d 185, 172 N.E.2d 562, affd. 369 U.S. 590 82 S.Ct. 987, 8 L.Ed.2d 130.)

The 1965 amendment clearly was intended to stop draft card burnings, but on its face the statute is narrowly drawn and does not discriminate between card-burning as protest or as something unrelated to symbolic communication. Another factor illustrates the difficulty here of adverting to motive, rather than looking primarily to the terms of the statute itself, in testing its constitutionality on its face. The duty to keep Selective Service certificates on one's person has been in existence for many years and has been held constitutional. United States v. Kime, 188 F.2d 677 (7th Cir.), cert. denied, 342 U.S. 823, 72 S.Ct. 41, 96 L.Ed. 622 (1951) (registrant claimed that religious belief motivated him not to carry certificate). Appellant does not claim that this requirement was aimed at suppressing dissent; had appellant destroyed the certificate in 1962 and been...