391 U.S. 367 (1968), 232, United States v. O'Brien

Docket Nº:No. 232
Citation:391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672
Party Name:United States v. O'Brien
Case Date:May 27, 1968
Court:United States Supreme Court

Page 367

391 U.S. 367 (1968)

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

United States



No. 232

United States Supreme Court

May 27, 1968

Argued January 24, 1968




O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating 50 U.S.C.App. § 462(b), a part of the Universal Military Training and Service Act, subdivision (3) of which applies to any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . ," the words italicized herein having been added by amendment in 1965. The District Court rejected O'Brien's argument that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose. The Court of Appeals held the 1965 Amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 Amendment was already punishable, since a Selective Service System regulation required registrants to keep their registration certificates in their "personal possession at all times," 32 CFR § 1617.1, and willful violation of regulations promulgated under the Act was made criminal by 50 U.S.C.App. § 462(b)(6). The court, however, upheld O'Brien's conviction under § 462(b)(6), which, in its view, made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 Amendment.


1. The 1965 Amendment to 50 U.S.C.App. § 462(b)(3) is constitutional as applied in this case. Pp. 375, 376-382.

(a) The 1965 Amendment plainly does not abridge free speech on its face. P. 375.

(b) 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. P. 376.

(c) A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers

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an important or substantial governmental interest unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest. The 1965 Amendment meets all these requirements. P. 377.

(d) The 1965 Amendment came within Congress'."broad and sweeping" power to raise and support armies and make all laws necessary to that end. P. 377.

(e) The registration certificate serves purposes in addition to initial notification, e.g., it proves that the described individual has registered for the draft; facilitates communication between registrants and local boards, and provides a reminder that the registrant must notify his local board of changes in address or status. The regulatory scheme involving the certificates includes clearly valid prohibitions against alteration, forgery, or similar deceptive misuse. Pp. 378-380.

(f) The preexistence of the nonpossession regulation does not negate Congress' clear interest in providing alternative statutory avenues of prosecution to assure its interest in preventing destruction of the Selective Service certificates. P. 380.

(g) The governmental interests protected by the 1965 Amendment and the nonpossession regulation, though overlapping, are not identical. Pp. 380-381.

(h) The 1965 Amendment is a narrow and precisely drawn provision which specifically protects the Government's substantial interest in an efficient and easily administered system for raising armies. Pp. 381-382.

(i) O'Brien was convicted only for the willful frustration of that governmental interest. The noncommunicative impact of his conduct for which he was convicted makes his case readily distinguishable from Stromberg v. California, 283 U.S. 359 (1931). P. 382.

2. The 1965 Amendment is constitutional as enacted. Pp. 382-385.

(a) Congress' purpose in enacting the law affords no basis for declaring an otherwise constitutional statute invalid. McCray v. United States, 195 U.S. 27 (1904). Pp. 383-384.

(b) Grosjean v. American Press Co., 297 U.S. 233 (1936) and Gomillion v. Lightfoot, 364 U.S. 339 (1960), distinguished. Pp. 384-385.

376 F.2d 538, vacated; judgment and sentence of District Court reinstated.

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WARREN, J., lead opinion

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

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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 anti-war beliefs, as he put it,

so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.

The indictment upon which he was tried charged that he

willfully and knowingly did mutilate, destroy, and change by burning . . . [his] Registration Certificate (Selective Service System Form No. 2); in violation of Title 50, App. United States Code, Section 462(b).

Section 462(b) is part of the Universal Military Training and Service Act of 1948. Section 462(b)(3), one of six numbered subdivisions of § 462(b), was amended by Congress in 1965, 79 Stat. 586 (adding the words italicized below), so that, at the time O'Brien burned his certificate, an offense was committed by any person,

who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate. . . .

(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 [88 S.Ct. 1676] motives of Congress in enacting the 1965 Amendment, and that the

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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 Willful violations of regulations promulgated pursuant to the Universal Military Training and Service Act were made criminal by statute. 50 U.S.C.App. § 462(b)(6). The Court of Appeals, therefore, was of the opinion that conduct punishable under the 1965 Amendment was already punishable under the nonpossession regulation, and consequently that the Amendment served no valid purpose; further, that, in light of the prior regulation, the Amendment must have been "directed at public, as distinguished from private, destruction." On this basis, the court concluded that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment. The court ruled, however, that O'Brien's conviction should be affirmed under the statutory provision, 50 U.S.C.App. § 462(b)(6), which, in its view, made violation of the nonpossession regulation a crime, because it regarded such violation to be a lesser included offense of the crime defined by the 1965 Amendment.6

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The Government petitioned for certiorari in No. 232, arguing that the Court of Appeals erred in holding the statute unconstitutional, and that its decision conflicted with decisions by the Courts of Appeals for the 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.


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 [88 S.Ct. 1677] five days he is issued a

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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...

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