# United States v. O'Brien (391 U.S. 367)

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## Concurring Opinion

    Harlan

## Dissenting Opinion

    Douglas
Supreme Court of the United States
391 U.S. 367
United States v. O'Brien
Certiorari to the United States Court of Appeals for the First Circuit
No. 232. Argued: January 24, 1968 --- Decided: May 27, 1968
O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his antiwar 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.
Held:
    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 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 pre-existence 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).
    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.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Francis X. Beytagh, Jr., Beatrice Rosenberg, and Jerome M. Feit.
Marvin M. Karpatkin argued the cause for respondent in No. 232 and petitioner in No. 233. With him on the brief were Howard S. Whiteside, Melvin L. Wulf, and Rhoda H. Karpatkin.

## Notes

* ↑ Together with No. 233, O'Brien v. United States, also on certiorari to the same court.