tive behind it was impermissible. We say only that the occasions cited to us where this has allegedly been done successfully are few, that they are in several ways distinguishable," and that none involved a mere implementation of an already existing regulatory scheme. Under these circumstances, we decline to hold the 1965 amendment unconstitutional on its face.

Of course, this does not end the case. Appellant urges the First Admendment defense even more vigorously in his alternate argument that, as applied to the facts of this case, the statute is an unconstitutional suppression of speech. Appellant reasons as follows: Symbolic speech is protected by the First Amendment; burning a draft card in a public meeting is such symbolic speech; moreover, cardburning is a most dramatic form of communication, and there is a constitutional right to make one's speech as effective as possible, subject to the proper constitutional standard; and, finally, whether that standard be the clear and present danger test or a balancing of interests, the statute as it was applied to him is unconstitutional.

These syllogisms require examination of basic concepts. It may be assumed that by burning his draft card, David Miller intended to communicate his ideas in an especially effective way and succeeded in doing so. Appellant relies on Supreme Court decisons protecting an individual's right to express, or refrain from expressing an idea symbolically. Thus, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), held that a compulsory flag salute was an unconstitutional violation of First Amendment rights of Jehovah's Witnesses. In that case, Mr. Justice Jackson said (319 U.S. at 632-633, 63 S.Ct. at 1183):

There is no doubt that *** the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. *** A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.

Twelve years before, in Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), the Court struck down on First Amendment grounds a state statute that prohibited "the display of a red flag as a symbol of opposition by peaceful and legal means to organized government." See Barnette, supra, 319 U.S. at 633, 63 S.Ct. at 1183. See also Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940). Similarly, other unconventional symbolic acts have been recognized as means of communications, e.g., picketing-Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); civil rights sit-ins-see Garner v. State of Louisiana, 368 U.S. 157, 201-202, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Brown v. State of Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966).11

[7] But that conduct may be symbolic does not end the matter; it is only the beginning of constitutional inquiry. Is all communicative action symbolic speech and is all symbolic speech protected by the First Amendment? The range of symbolic conduct intended to express disapproval is broad: it can extend from a thumbs-down gesture to political assassination. Would anyone seriously contend that the First Amendment protects the latter? 12 Appellant would undoubtedly respond that peaceful symbolic acts, as contrasted to violent ones, are protected and that draft card burning is clearly the former. The distinction is significant, of course; it was recognized in Milk Wagon Drivers, etc. v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941), which denied free speech protection to picketing intertwined with acts of violence. But what of other more peaceable but unconventional symbolic acts? In People v. Stover, supra, the display of offensive objects on a clothesline was a protest against high property taxes; the court held that a zoning ordinance prohibiting such

10 E.g., in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Supreme Court relied on the unfair administration of a local ordinance in reversing a conviction of Chinese laundry operators. No such contention is made here; e.g., appellant does not claim that he was reclassified because he participated in a protest demonstration. See also reference to Lamont v. Postmaster General and Grosjean v. American Press Co., supra, p. 76. 1 This characterization of a sit-in was accepted by Mr. Justice Harlan in Garner and by the "prevailing opinion" of Mr. Justice Fortas in Brown (joined in by Chief Justice Warren and Mr. Justice Douglas).

12 Political assassination is a gesture of protest, too, but no one is disposed to work up any First Amendment enthusiasm for it." Kalven, The Negro and the First Amendment 133 (1965).

16

conduct was constitutional.13 What of protests made dramatic by turning on water faucets," dumping of garbage in front of City Hall,15 stalling cars at an event attracting heavy traffic, burning an American flag on a street corner," or tearing up on television a court order or a document required to be kept under internal revenue regulations? Each such act may be designed to mobilize public opinion against an existing statute or government policy; yet, sincere motivation or the labeling of even non-violent conduct as symbolic does not necessarily transform that conduct into speech protected by the First Amendment. It may be that particular considerations surrounding a specific symbolic act justify clothing it in the concept of speech. Thus, picketing, like sit-ins, may be the poor man's printing press; 18 similarly, the technique of a "silent and reproachful presence" may be the only means of true communication in certain areas of the civil rights struggle. We mention all these acts not to decide whether they are properly characterized as speech but only to emphasize the complexity of the problem. We are not at all sure that destroying a draft card even at a public rally must be regarded as an exercise of speech, but we are willing to assume it arguendo, as the district court did. However, this only forms the basis for further analysis. Appellant concedes that even speech may be regulated, or in certain circumstances prohibited, provided that the proper constitutional test is met; it is here that appellant contends the 1965 amendment fails.

99 19

[8] Appellant argues that since speech is involved, the statute prohibiting it must be evaluated under the clear and present danger test, which, in its classic statement, is:

"whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed 470 (1919). See also Bridges v. State of California, 314 U.S. 252, 62 S. Ct. 190, 86 L.Ed 192 (1941). However, recent Supreme Court decisions have applied a balancing approach to determine the constitutionality of legislation that indirectly restricted speech. In American Communications Assn., CIO v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L.Ed. 925 (1950), certain unions challenged a statute that required union officials to file a non-Communist affidavit as a condition of using the services of the National Labor Relations Board. Rejecting the argument that the statute violated the First Amendment, the Court said (339 U.S. at 399, 70 S.Ct. at 684): "When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstance presented." Most recent cases indicate the continued vitality of this balancing test. See Konigsberg v. State Bar, 366 U.S. 36, 49–51, 81 S.C.T. 997. 6 L.Ed.2d 105 (1961): Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 91, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). See also Barenblatt v. United States, 360 U.S. 109, 126-127, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959): NAACP v. State of Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); United States v. Aarons, 310 F.2d 341, 345 (2d Cir. 1962). The district court apparently employed this standard. We agree that the most recent Supreme Court decisions seem to require its use, at least where a narrowly-drawn statute on its face regulates conduct, not the communication of ideas."

20

13 It is perhaps significant that an appeal to the Supreme Court was dismissed for want of a substantial federal question, 375 U.S. 42, 84 S. Ct. 147, 11 L.Ed.2d 107 (1963). The case is discussed in Comment, 64 Colum.L.Rev. 81 (1964).

14 Kelvern, The Concept of the Public Forum Cox v. State of Louisiana, in 1965 The Supreme Court Review 1, 11.

15 N.Y. Times, April 22, 1964, p. 1, col. 6.

16 Id., August 22, 1963. p. 18, col. 2.

17 People v. Street (N.Y.C. Crim. Ct., Kings Co., July 26, 1966, appeal pending, App. T., 2d Dep't) in N.Y. Times, July 27, 1966, p. 47, col. 6.

18 Kalven, op. cit. supra note 12. at 133.

19 Brown v. State of Louisiana, 383 U.S. 131, 142, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966) (opinion of Fortas, J.).

20 While United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), reaches on a bill of attainder theory a result inconsistent with American Communications Assn., CIO v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), we do not regard it as a rejection of use of the balancing test in the situation before us. For a criticism of the test if used generally, see Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 912-14 (1963); see also Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424 (1962); Meiklejohn, The First Amendment Is an Absolute, in 1961 The Supreme Court Review 245; Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960). For more sympathetic treatment of a balancing test, see Karst, Legislative Facts in Constitutional Litigation, in 1960 The Supreme Court Review 75; Mendelson, Justices Black and Frankfurter: Conflict in the Court (1961).

[9] Under this approach, the public interest to be protected is the proper functioning of the Selective Service System. In a world where resort to force is still the rule, rather than the exception, this is an interest of the highest order; its importance undoubtedly accounts for the many decisions rejecting First Amendment defenses to Selective Service violations. See United States v. Kime, supra ; United States v. Mohammed, 288 F.2d 236, 244 (7th Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 37, 7 L.Ed.2d 26 (1961); United States v. Miller, 233 F.2d 171 (2d Cir.1956) (per curiam); Gara v. United States, 178 F.2d 38 (6th Cir. 1949), aff'd by an equally divided court, 340 U.S. 857, 71 S.Ct. 87, 95 L.Ed. 628 (1950). Indeed, we do not understand appellant to question the need for proper operation of the draft; instead he questions whether the 1965 amendment actually serves this important end. The trial court held that it did, but appellant argues that the court gave no reasons to support its conclusion and that there are none in fact.

We conclude that forbidding destruction of Selective Service certificates serves legitimate purposes in administering the system. To begin with, the Notice of Classification serves as proof of registration and it also contains complete information as to a registrant's classification, including the type and date thereof, and the period for which it is effective. Thus, inability to produce the card provides an easy means of initially detecting those attempting to evade their Selective Service obligations." Similarly, in time of war or national emergency, it provides an instant means in a transient society of determining a registrant's fitness for immediate induction, if exigencies require it. Thus, appellant lives in New York City but is registered in Syracuse. In an extreme emergency (e.g., a call-up by radio), he could be ordered to report to a local board in New York City, although that board has no record relating to appellant; only if he possessed his own Notice of Classification could his fitness for induction be determined accurately and expeditiously. Moreover, the Notice of Classification can assist a local board to reconstruct files destroyed by fire or other disaster.22 In addition, the Notice carries a continual reminder to a registrant of his obligation to notify his local board of facts which might change his classification. The Notice also guarantees a registrant's prompt receipt of accurate information of his current status and enables him to prove it should the occasion arise. Moreover, it facilitates his personal inquiries to a local board: To provide correct information as to a registrant's present draft status, the board must know his current classification. If a registrant inquires of his own local board, the Notice furnishes this knowledge quickly without a search of records; if the registrant inquires of another local board in a community where he happens to be, it may be the only way he can obtain the information. To conclude, proper functioning of the system depends upon the aggregated consequences of individual acts; in raising an army no less than in regulating commerce, cf. Wickard v. Filburn, 317 U.S. 111, 127–128, 63 S. Ct. 82, 87 L. Ed. 122 (1942), the seriousness of an individual's acts must often be assessed not only in isolation but under the assumption that they may be multiplied manifold. Therefore, the interest to be served-efficient functioning of the Selective Service System-is furthered by the statute under attack.

[10] Against these reasons must be weighed the effect of the statute on freedom of expression. Except to prohibit destruction of certificates, the statute does not prevent political dissent or criticism in any way. It is narrowly drawn to regulate a limited form of action. Under the statute, aside from destroying certificates, appellant and others can protest against the draft, the military action in Vietnam and the statute itself in any terms they wish-and indeed did so at the rally where appellant was arrested. Appellant claims, however, that the burning of a draft card is more dramatic than mere speech and that he has a right to the most effective means of communication. But surely this generalization has its own limits. In Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949), a conviction was affirmed under an ordinance forbidding the use on public streets of sound trucks or any other instrument which emitted a "loud and raucous" noise. To the claim that the statute unconstitutionally abridged freedom of speech, the "prevailing opinion" of the Court stated (336 U.S. at 88-89, 69 S. Ct. at 454):

"That more people may be more easily and cheaply reached by sound trucks *** is not enough to call forth constitutional protection for what those charged

with public welfare reasonably think is a nuisance when easy means of publicity are open. Section 4 of the ordinance bars sound trucks from broadcasting in a loud and raucous manner on the streets. There is no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers." [Emphasis added.]

We do not imply that the existence of many means of communication may ordinarily justify a ban on one of them; for example, suppression of a newspaper because radio and television are available is clearly unconstitutional. See NLRB v. Fruti & Vegetable Packers, 377 U.S. 58, 79-80, 84 S. Ct. 1063, 12 L. Ed. 2d 129 (1964) (Black, J., concurring). We only say that in the case of the symbolic speech posed here, such a consideration is proper. See Kovacs v. Cooper, supra 336 U.S. at 97, 69 S. Ct. at 459 (Jackson, J., concurring) ("The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself, and all we are dealing with now is the sound truck."). Moreover, pure speech and conduct offered symbolically as speech need not be regarded as identical. In Cox v. State of Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L. Ed. 2d 471 (1965), the Court said:

"We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. * * * We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra [336 U.S. 490] at 502 [69 S. Ct. 684, at 691, 93 L. Ed. 834], that ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'"

See also City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 826-827, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966). Viewing all of the considerations, we find that under the test applied in American Communications Assn., CIO v. Douds, supra, and in later cases,28 the "particular conduct [destruction of draft cards] is regulated in the interest of public order," that "the regulation results in an indirect" and minimal abridgement of "speech" and that the former "demands the greater protection under the particular circumstances presented." Accord, United States v. Smith, 249 F. Supp. 515 (S.D. Iowa 1966), appeal pending, 8th Cir. We are supported in this conclusion by the knowledge that appellant and those who agree with him remain free, as indeed they should be, to criticize national policy as vigorously as they desire by the written or spoken word; they are simply not free to destroy Selective Service certificates.

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[11] Appellant's final argument is that since the statute does not serve any rational legislative purpose the statute is an unconstitutional deprivation of individual liberty without due process of law under the Fifth Amendment. Thus, appellant points out that the 1965 amendment has been called "a silly law" in a national periodical with extensive circulation. However, it is not the province of the judiciary to praise or condemn this law; our function is to determine only the power of Congress in enacting the statute, not its wisdom. For the reasons already given at length above, we find that the statute is neither arbitrary nor without purpose, that it is reasonably related to the power of Congress to raise and support armies, and that it reinforces an obligation which has been imposed upon registrants for many years. Accordingly, the judgment of conviction is affirmed.

Mr. SPEISER. Mr. McClory, you quoted from the Miller case, and if I had the O'Brien case, I would quote from that to you, but from the comments that you just made, I would infer that at the very least you would be interested in eliminating the verbal aspects of the legislation that is before you.

Mr. McCLORY. None of these other decisions that you referred to, you had the flag salute case, and I think some non-Communist cases other than these two we have referred to-or the draft card burning cases, none referred to an American flag?

23 See cases cited supra, p. 80.

24 See Wainwright, "A Serious To-Do About a Silly Law," Life, March 4, 1966, p. 17.

Mr. SPEISER. No.

Mr. McCLORY. And you have no flag burning cases?

Mr. SPEISER. No. There is a case in Hawaii, but it didn't involve Mr. McCLORY. I am somewhat intrigued by your reference in the first page of your statement in which you state:

It cannot be argued that the Congress is entitled to pass legislation with the deliberate purpose of suppression of a specific form of dissent.

And then you cite the Soviet statute which was passed in 1966, I guess, in which it was decided nationally that there a person who defaced a flag of the Soviet Union could be punished with up to 2 years imprisonment.

What are you suggesting there, that because they did it we have no right to do it; or what is the purpose of this comparison?

Mr. SPEISER. My purpose in the comparison is that the Soviet Union has passed legislation of this kind. I find that the legislation that it passed is in line with an intolerance of dissent, both verbal and symbolic, and I am suggesting that this Congress should not engage in that same kind of legislative activity.

Mr. McCLORY. Are you impugning the motives of all of those who are supporting legislation to protect the American flag against this kind of defilement?

Mr. SPEISER. No, Mr. McClory, I am not impugning motives. IMr. McCLORY. Are you suggesting that those who are sponsoring this legislation are behaving like a Soviet

Mr. SPEISER. No, nor am I suggesting that if this legislation were passed we would become like the Soviet Union. I am suggesting that legislation of this type has been passed in a dictator-type country.

Mr. McCLORY. We are not going to be a dictatorship if it passes. Mr. SPEISER. I quite agree that we will not; but we will be less free than we were before.

Mr. MCCLORY. I gather from what you say that conduct which would intend to incite a riot or arouse a crowd to stampede would be a sort of a breach of the peace offense, so that it really is already covered by local ordinance. Is that your position?

Mr. SPEISER. Yes. I am sure there are local ordinances all over against inciting to riot.

Mr. MCCLORY. And you think they are sufficient?

Mr. SPEISER. I believe so.

Mr. McCLORY. You say there may be a legitimate public interest for the Congress to encourage reverence and respect for the American flag. Do you mean that we have an interest in that, but we can't legislate on it? Is that about it?

Mr. SPEISER. NO; I am suggesting that encouraging reverence for the flag is not encouraged by beating people over the head with a club. I think it is a desirable thing to encourage reverence, but you don't encourage it by penalizing individuals who don't go along with it.

Mr. MCCLORY. Don't you think the enactment of this statute, which would increase the penalty from what it is now to a year and a thousand dollar fine, would serve as a deterrent for these characters who are engaging in these public flag burning escapades?

Mr. SPEISER. No, I think it would encourage it, just as draft card burning did not end when Congress passed a draft card burning law. I think it has encouraged it.