insupportable. For example, Cantwell v. Conn., 1940, 310 U.S. 296, 307-11; DeJonge v. Oregon, 1937, 299 U.S. 353; Terminiello v. Chicago, 1949, 337 U.S. 1. We so find this one.

I ask permission that the full decision of the First Circuit Court of Appeals in O'Brien v. United States be inserted in the record at this point.

Mr. ROGERS. It is received for the record.

(The decision follows:)

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 6813

DAVID PAUL O'BRIEN, DEFENDANT, APPELLANT,

v.

UNITED STATES OF AMERICA, APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

MASSACHUSETTS

Before ALDRICH, Chief Judge

MCENTEE and COFFIN, Circuit Judges.

Marvin M. Karpatkin, with whom Howard S. Whiteside, Melvin L. Wulf, Henry P. Monaghan and Eleanor Holmes Norton were on brief, for appellant. John Wall, Assistant U.S. Attorney, with whom Paul F. Markham, United States Attorney, was on brief, for appellee.

April 10, 1967

ALDRICH, Chief Judge. The defendant was indicted on the charge that he "willfully and knowingly did mutiliate, 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 composed of six numbered subsections, none of which was identified except as above. The following provisions are here pertinent.

"(3) who forges, alters, knowingly destroys, knowingly mutilates,1 or in any manner changes any such certificate ***"

"(6) who knowingly violates or evades any of the provisions of this title (said sections [451-454, 455-471 of this Appendix]) or rules and regulations promulgated pursuant thereto relating to the issuance, transfer or possession of such certificate."

A regulation required that possession of a certificate be maintained at all times. 32 C.F.R. § 1617.1. The penalty for violation of all sections listed was a fine, not to exceed $10,000, or imprisonment for not more than five years, or both.

The defendant moved to dismiss the indictment, asserting violation of the First and a number of other amendments. The motion was denied. Thereafter he was tried to a jury. At the trial he conceded that he had burned his certificate, and raised only his constitutional defenses. Upon conviction and sentence' he appeals. His position here is that his conduct, publicly done to express his disapproval of the draft and all that it represented was a lawful exercise of free speech.

1 The italics are ours. See infra, fn. 4.

2 Defendant was sentenced under the Youth Correction Act, 18 U.S.C. § 5010(b) (six years).

Subsection (b) (3) was originally directed to forgery and fraud. In 1965 some young men of the same mind as the defendant engaged in the same conduct, to wit, the public burning of "draft cards," which he has now imitated. The reaction in Congress was plain. Despite the fact that subsection (b) (6) already made it an offense to part with possession of a draft card, Congress made it a separate offense if loss of possession was effected in a particular manner. The words "knowingly destroys, knowingly mutilates" were added to subsection (b) (3).* In upholding the validity of this amendment against the same constitutional attack that is presently made, the court in United States v. Miller, 2 Cir., 1966, 367 F.2d 72, cert. den. 2/13/67, said, at 77,

"What Congress did in 1965 only strengthened what was already a valid obligation of existing laws; i.e., prohibiting destruction of a certificate implements the duty of possessing it at all times."

In support of this assertion the court demonstrated the reasonableness of requiring registrants to be in possession of their cards, and with this demonstration we do not quarrel. United States v. Kime, 7 Cir., 1951, 188 F.2d 677, cert. den. 342 U.S. 823. With all respect, however, the existence of prior law requiring registrants to possess their cards at all times does not support the amendment. On the contrary, given that law, we can see no proper purpose to be served by the additional provision prohibiting destruction or mutilation.5 The legislative history suggests none," and the Second Circuit suggested none in Miller. To repeat our metaphor adopted by the Court in Jarecki v. G. D. Searle & Co., 1961, 367 U.S. 303, 307, "If there is a big hole in the fence for the big cat, need there be a small hole for the small one?" Cf. Coakley v. Postmaster of Boston, 1 Cir., 3/16/67, F.2d-.

We see no possible interest, or reason, for passing a statute distinguishing between a registrant obligated to carry a card who mails it back to his draft board, United States v. Kime, supra, and one who puts it in his wastebasket. The significant fact in both of these instances is that he is not carrying it. The distinction appears when the destruction itself is an act of some consequence. It requires but little analysis to see that this occurs when, and only when, the destruction is, as in the case at bar, a witnessed event. We would be closing our eyes in the light of the prior law if we did not see on the face of the amendment that it was precisely directed at public as distinguished from private destruction. In other words, a special offense was committed by persons such as the defendant who made a spectacle of their disobedience.

7

In singling out persons engaging in protest for special treatment the amendment strikes at the very core of what the First Amendment protects. It has long been beyond doubt that symbolic action may be protected speech." Speech is, of course, subject to necessary regulation in the legitimate interests of the community, Kovacs v. Cooper, infra, but statutes that go beyond the protection of those interests to suppress expressions of dissent are insupportable. E.g., Cantwell v. Connecticut, 1940, 310 U.S. 296, 307-11; DeJonge v. Oregon, 1937, 299 U.S. 353; Terminiello v. Chicago, 1949, 337 U.S. 1. We so find this one.

However, the defendant is not in the clear. In burning his certificate he not only contravened subsection (b) (3), but also subsection (b) (6). He knew this at the time of the burning, for his card summarized both provisions, and

We are not in a position to say how widespread this behavior became. See Finman & Macaulay, Freedom to Dissent: The Vietnam Protests and the Words of Public Officials, 1966 Wis. L. Rev. 632, 644-53.

P.L. 89-152, 79 Stat. 586, Aug. 30, 1965.

5 During argument we inquired whether the pecuniary loss to the government by the destruction of a card might be a basis for the amendment. Defendant replied that the point had never been advanced. We find no statute in any other area making such negligible damage a felony. We cannot think that Congress believed the intrinsic value of a draft card to require this protection.

"We do not rely in this connection on the fact that the legislative history suggests an improper purpose, see infra, but merely note the absence of any proper one. We note, also, that the House Committee on Armed Services conceded that the prior law might "appear broad enough to cover all acts having to do with the mistreatment of draft cards in the possession of individuals." H. Rep. No. 747, 89th Cong., 1st Sess.

7 While we make no attempt to divine the motive of any particular proponent of the legislation, we regard it as significant that the impact on certain expressions of dissent is no more random accident, but quite obviously the product of design. Cf. Grosjean v. American Press Co., 1936, 297 U.S. 233; Gomillion v. Lightfoot, 1960, 364 U.S. 339.

E.g., West Virginia Board of Education v. Barnette, 1943, 319 U.S. 624; Stromberg v. California, 1931, 283 U.S. 359.

he knew it in a larger sense, as is revealed by the memorandum in support of his motion to dismiss, reproduced in his Record Appendix. The memorandum asserted,

"To rely upon individuals having draft cards in their possession as a means of operative [sic] the selective service system would seem to be impractical if not downright dangerous. *** Whether Defendant O'Brien has his draft card in his possession, whether he burned, mutilated or whatever, will have little or no effect upon the selective service system."

It is apparent that the factual issue of nonpossession has been fully presented and tried and been found against the defendant. F.R.Crim.P. 31(c) provides, "The defendant may be found guilty of an offense necessarily included in the offense charged ***." See United States v. Ciongole, 3 Cir., 1966, 358 F.2d 439. We see no procedural reason why defendant should not stand convicted of this violation of section (b).

Nor do we see any constitutional objection to conviction for nonpossession of a certificate. It is one thing to say that a requirement that has no reasonable basis may impinge upon free speech. Different considerations arise when the statute has a proper purpose and the defendant merely invokes free speech as a reason for breaking it. We would agree, for example, that a provision relating to injury to the Capitol ornaments could not make it a heightened offense if statuary was defaced for the announced purpose of disparaging the individual memorialized. This, essentially, is what subsection (6) has done if its presence has influenced the court in the severity of the sentence, a matter we will come to shortly. However, it could hardly be suggested that free speech permitted defacement of a statue with impunity so long as disparagement was the declared motive. The First Amendment does not give the defendant carte blanche. Cf. Kovacs v. Cooper, 1949, 336 U.S. 77; Giboney v. Empire Storage and Ice Co., 1949, 336 U.S. 490.

This leaves us with one reservation. Very possibly, in imposing sentence, the court took into consideration what the statute, by virtue of the amendment, indicated to be aggravating circumstances. Clearly it was an aggravated offense in the eyes of the proponents of the legislation. See remarks of Representative Rivers, Congressional Record, House, August 10, 1965, at 19135. Doubtless, too, the defendant chose his particular conduct precisely because of its "speaking" aspect. For the court to conclude, as was suggested in the legislative report, H. Rep. No. 747, 89th Cong., 1st Sess. 1-2, that the impact of such conduct would impede the war effort, and measure the sentence by the nature of his communication, would be to punish defendant, pro tanto, for exactly what the First Amendment protects. The only punishable conduct was the intentional failure to carry his card.

While we do not have, and do not purport to exercise, jurisdiction to review a lawful sentence, we do hold that fairness to the defendant requires that he be resentenced upon considerations affirmatively divorced from impermissible factors. Marano v. United States, 1 Cir., 3/23/1967,

F.2d -.

We remark, further, that any future indictments should be laid under subsection (b) (6) of the statute.

The judgment of conviction is affirmed and the case is remanded to the District Court to vacate the sentence, and to resentence as it may deem appropriate in the light of this opinion.

Mr. ZELENKO. Would you comment on the following excerpt from an opinion by a high court in Hawaii in a desecration decision where the flag was pictured in a poster with the stars resembling dollar signs and the red and white stripes at their end away from the field of blue were painted with specks of red. The court in that case found that the facts did not constitute desecration of the flag and stated as follows:

Third, at the rally, in reply to an inference that those of defendant's posture towards American participation in Vietnam were traitors to our country, the defendant's statement was that he, too, loved America, that he would not be involving himself in the current Vietnam controversy if he didn't care enough about our country. The flag is an emblem which, if it can be said to represent anything, is a symbolic representation of the United States as a nation, a unified

We do not, of course, suggest that if the defendant was urging others to burn their own cards this would have been protected speech. However, we do not understand the government to make this charge.

body politic, embracing the bad as well as the good and welded into one by common bond of territory and history. It is not symbolic of segmented fragments of the American nation, whether they be American military might or race riots, Rock Mountain majesty or night life in Las Vegas, Vietnam involvement, or peace marches against it. To this concept of the flag as symbolic of the entirety of what we call America, the defendant evinced no contempt or defiance. Rather, to his way of thinking, he wished to gain respect for it.

Do you want to comment on that?

Mr. MUSMANNO. My comment would be an obvious one, and it is, that the intent of the originator of that distortion of sentiment for the flag would have to be considered by the judge.

Now if this individual was in a discussion of what America really stands for and how the purposes of the founders of our country are being distorted because money has become the central motivation of all the actions of those in power, then with this rather queer sense of transmuting his thoughts into a graphic representation, he places a dollar sign instead of a star on the flag. I would say he is engaging in a philosophic thought.

I would not say that that kind of discussion would be a desecration. Mr. ZELENKO. Would you consider that a speech? Is that symbolic expression a speech?

Mr. MUSMANNO. Yes, I would say that.

Mr. ZELENKO. One of the reasons you give for supporting the proposed legislation is that a breach of the peace is involved.

Mr. MUSMANNO. Yes.

Mr. ZELENKO. Can you give the committee any of your thoughts with respect to the need for a Federal breach of the peace statute? Do you know of any other Federal breach of the peace statutes?

Mr. MUSMANNO. Of course in all Federal territory you have statutes on breach of the peace, but here we are speaking of Federal law as applied to the individual 50 States. I don't know that I could select in the index of my mind the cards referring to particular statutes of that character.

Mr. ZELENKO. What in your view, Judge, is responsible for the lack of prosecution for desecration of the flag today? Is it a lack of patriotism or dedication of State law enforcement agents? What is the reason for the lack of prosecution?

Mr. MUSMANNO. Because there is the attitude being fomented, circulated, and augmented by college professors, college presidents, and some judges that individual freedom of expression is paramount over everything else.

The protection of society no longer is regarded as the central motivation of law. Emphasis is being placed on protecting expression of the individual, no matter how misguided he may be, no matter how much damage he may do.

Mr. ZELENKO. Do you say the Federal judiciary takes a different attitude than the State judiciary?

Mr. MUSMANNO. As I indicated in my prepared remarks there is something about the phrase "a Federal case," which is awesome. People sometimes say colloquially, "Don't make it a Federal case," that is, don't make it so important.

When the flag burner realizes that the U.S. Government is going to prosecute him, that he will have to go into a U.S. court, I think that

he will feel a greater sense of fear than if he is only prosecuted by the local constable or local justice of the peace.

Mr. ZELENKO. Do you not conceive of greater difficulties in enforcement confronting the Federal authorities than those that confront local enforcement officials?

Mr. MUSMANNo. No. As I said before, I think each will complement the other. The State authorities will feel just a little more strengthened and the Federal authorities will feel they should help the State authorities.

Mr. ZELENKO. Judge, in some of these bills terms such as "defy" or "cast contempt by word or act" are used. I know you recognize the need for strict interpretation of criminal statutes.

Would you care to give the committee

Mr. MUSMANNO. Yes; I would be against those words. I would be against these tent-like words that cover so much territory that one can crawl under the tent both going in and coming out.

Mr. ZELENKO. Is it your testimony that the physical attacks upon the flag perhaps rather than verbal assaults upon it should be the central concern of a Federal statute?

Mr. MUSMANNO. I would like to see the committee train its guns on the physical attacks because that is what we are being disturbed about, and properly so, today.

Mr. WHITENER. Mr. Chairman, counsel has asked the Judge about this Hawaiian case, State v. Kent.

In that case the occurrence took place at a rally or meeting at which both sides were expressing their views. One young lady got up and pointed out that her father and uncle were fighting in Vietnam, and made some very fine statements about America.

Then the defendant was heckled by others. Then the young lady who served in the WACS went up on the stage and spoke in support of our policy, the U.S. policy.

The State witness, some sergeant, characterized this drawing as "a caricature of American flag" and the defendant testified that he had no intention of defiling the flag or casting contempt on the flag, and the court arrived at the conclusion "That the defendant, far from intending a desecration of the America flag, was himself accusing others of doing that" so I don't believe that the Hawaiian case with the stars being replaced with dollar signs and with the blue and red stripes being not blue and red entirely would be what we are talking about here.

We are talking about the flag of the United States being hauled down and desecrated.

Mr. MUSMANNO. There is as much ocean of difference between what happened in New York State and what happened in the Hawaiian case as there is in the amount of water which separates those two points.

Mr. WHITENER. We are not saying that some man who marches in a parade for Uncle Sam can't wear red and blue stripes and have some stars on his jacket because that is a desecration of the flag.

Mr. MUSMANNo. No. We must avoid getting into absurd situations. That is the reason I would like to see the machineguns trained on the particular act of desecration, which is giving aid and comfort to our