U.S. Supreme Court United States v. O'Brien, 391
U.S. 367 (1968) United States v.
O'Brien No. 232 Argued January 24,
1968 Decided May 27, 1968 391
U.S. 367 ast|>* 391
U.S. 367 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST
CIRCUIT Syllabus 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. Held: 1. The 1965 Amendment to 50 U.S.C.App. § 462(b)(3) is
constitutional as applied in this case. Pp. 391 U. S. 375 , 391 U. S.
376 -382.

															(a) The 1965 Amendment plainly does not abridge free speech on
its face. P. 391 U. S.
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. 391 U. S.
376 .

															(c) A governmental regulation is sufficiently justified if it is
within the constitutional power of the Government and furthers Page 391 U. S. 368 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. 391 U. S.
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. 391 U. S.
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. 391 U. S.
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. 391 U. S.
380 .

															(g) The governmental interests protected by the 1965 Amendment
and the nonpossession regulation, though overlapping, are not
identical. Pp. 391 U. S.
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. 391 U. S.
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. 391 U. S.
382 .

															2. The 1965 Amendment is constitutional as enacted. Pp. 391 U. S.
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. 391 U. S.
383 -384.

															(b) Grosjean v. American Press Co., 297 U.
S. 233 (1936) and Gomillion v. Lightfoot, 364 U. S. 339 (1960), distinguished. Pp. 391 U. S. 384 -385.

															376 F.2d 538, vacated; judgment and sentence of District Court
reinstated. Page 391 U. S. 369 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. [ Footnote
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. [ Footnote 2 ] He
did not contest the fact Page 391 U. S. 370 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. [ Footnote
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 motives of
Congress in enacting the 1965 Amendment, and that the Page 391 U. S. 371 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. [ Footnote 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). [ Footnote 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. [ Footnote 6 ] Page 391 U. S. 372 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 Second [ Footnote 7 ] and Eighth Circuits [ Footnote 8 ] 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. I 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. [ Footnote 9 ]
He is assigned a Selective Service number, [ Footnote 10 ] and within five days he is issued
a Page 391 U. S. 373 registration certificate (SSS Form No. 2). [ Footnote 11 ] Subsequently, and based on a
questionnaire completed by the registrant, [ Footnote 12 ] he is assigned a classification
denoting his eligibility for induction, [ Footnote 13 ] and, "[a]s soon as practicable"
thereafter, he is issued a Notice of Classification (SSS Form No.
110). [ Footnote 14 ] This
initial classification is not necessarily permanent, [ Footnote 15 ] and if, in the interim
before induction, the registrant's status changes in some relevant
way, he may be reclassified. [ Footnote 16 ] After such a reclassification, the local
board, "as soon as practicable," issues to the registrant a new
Notice of Classification. [ Footnote 17 ]

															Both the registration and classification certificates are small
white cards, approximately 2 by 3 inches. The registration
certificate specifies the name of the registrant, the date of
registration, and the number and address of the local board with
which he is registered. Also inscribed upon it are the date and
place of the registrant's birth, his residence at registration, his
physical description, his signature, and his Selective Service
number. The Selective Service number itself indicates his State of
registration, his local board, his year of birth, and his
chronological position in the local board's classification record.
[ Footnote 18 ]

															The classification certificate shows the registrant's name,
Selective Service number, signature, and eligibility
classification. It specifies whether he was so classified by his
local board, an appeal board, or the President. It Page 391 U. S. 374 contains the address of his local board and the date the
certificate was mailed.

															Both the registration and classification certificates bear
notices that the registrant must notify his local board in writing
of every change in address, physical condition, and occupational,
marital, family, dependency, and military status, and of any other
fact which might change his classification. Both also contain a
notice that the registrant's Selective Service number should appear
on all communications to his local board.

															Congress demonstrated its concern that certificates issued by
the Selective Service System might be abused well before the 1965
Amendment here challenged. The 1948 Act, 62 Stat. 604, itself
prohibited many different abuses involving

															"any registration certificate, . . . or any other certificate
issued pursuant to or prescribed by the provisions of this title,
or rules or regulations promulgated hereunder. . . ."

															62 Stat. 622. Under §§ 12(b)(1)-(5) of the 1948 Act, it was
unlawful (1) to transfer a certificate to aid a person in making
false identification; (2) to possess a certificate not duly issued
with the intent of using it for false identification; (3) to forge,
alter, "or in any manner" change a certificate or any notation
validly inscribed thereon; (4) to photograph or make an imitation
of a certificate for the purpose of false identification, and (5)
to possess a counterfeited or altered certificate. 62 Stat. 622. In
addition, as previously mentioned, regulations of the Selective
Service System required registrants to keep both their registration
and classification certificates in their personal possession at all
times. 32 CFR § 1617.1 (1962) (Registration Certificates);
[ Footnote 19 ] 32 CFR §
1623.5 Page 391 U. S. 375 (1962) (Classification Certificates). [ Footnote 20 ] And § 12(b)(6) of the Act, 62 Stat. 622,
made knowing violation of any provision of the Act or rules and
regulations promulgated pursuant thereto a felony.

															By the 1965 Amendment, Congress added to § 12(b)(3) of the 1948
Act the provision here at issue, subjecting to criminal liability
not only one who "forges, alters, or in any manner changes", but
also one who "knowingly destroys, [or] knowingly mutilates" a
certificate. We note at the outset that the 1965 Amendment plainly
does not abridge free speech on its face, and we do not understand
O'Brien to argue otherwise. Amended § 12(b)(3), on its face, deals
with conduct having no connection with speech. It prohibits the
knowing destruction of certificates issued by the Selective Service
System, and there is nothing necessarily expressive about such
conduct. The Amendment does not distinguish between public and
private destruction, and it does not punish only destruction
engaged in for the purpose of expressing views. Compare
Stromberg v. California, 283 U. S. 359 (1931). [ Footnote 21 ] A law
prohibiting destruction of Selective Service certificates no more
abridges free speech on its face than a motor vehicle law
prohibiting the destruction of drivers' licenses, or a tax law
prohibiting the destruction of books and records. Page 391 U. S. 376 O'Brien nonetheless argues that the 1965 Amendment is
unconstitutional in its application to him, and is unconstitutional
as enacted because what he calls the "purpose" of Congress was "to
suppress freedom of speech." We consider these arguments
separately. II O'Brien first argues that the 1965 Amendment is unconstitutional
as applied to him because his act of burning his registration
certificate was protected "symbolic speech" within the First
Amendment. His argument is that the freedom of expression which the
First Amendment guarantees includes all modes of "communication of
ideas by conduct," and that his conduct is within this definition
because he did it in "demonstration against the war and against the
draft."

															We cannot accept the view that an apparently limitless variety
of conduct can be labeled "speech" whenever the person engaging in
the conduct intends thereby to express an idea. However, even on
the assumption that the alleged communicative element in O'Brien's
conduct is sufficient to bring into play the First Amendment, it
does not necessarily follow that the destruction of a registration
certificate is constitutionally protected activity. This Court has
held that, 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. To characterize the
quality of the governmental interest which must appear, the Court
has employed a variety of descriptive terms: compelling; [ Footnote 22 ] substantial; [ Footnote 23 ] subordinating;
[ Footnote 24 ] Page 391 U. S. 377 paramount; [ Footnote 25 ]
cogent; [ Footnote 26 ]
strong. [ Footnote 27 ]
Whatever imprecision inheres in these terms, we think it clear that
a government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression, and if
the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest.
We find that the 1965 Amendment to § 12(b)(3) of the Universal
Military Training and Service Act meets all of these requirements,
and consequently that O'Brien can be constitutionally convicted for
violating it.

															The constitutional power of Congress to raise and support armies
and to make all laws necessary and proper to that end is broad and
sweeping. Lichter v. United States, 334 U.
S. 742 , 334 U. S.
755 -758 (1948); Selective Draft Law Cases, 245 U. S. 366 (1918); see also Ex parte Quirin, 317 U. S.
1 , 317 U. S. 25 -26
(1942). The power of Congress to classify and conscript manpower
for military service is "beyond question." Lichter v. United
States, supra, at 334 U. S. 756 ; Selective Draft Law Cases, supra. Pursuant to this power,
Congress may establish a system of registration for individuals
liable for training and service, and may require such individuals,
within reason, to cooperate in the registration system. The
issuance of certificates indicating the registration and
eligibility classification of individuals is a legitimate and
substantial administrative aid in the functioning of this system.
And legislation Page 391 U. S. 378 to insure the continuing availability of issued certificates
serves a legitimate and substantial purpose in the system's
administration.

															O'Brien's argument to the contrary is necessarily premised upon
his unrealistic characterization of Selective Service certificates.
He essentially adopts the position that such certificates are so
many pieces of paper designed to notify registrants of their
registration or classification, to be retained or tossed in the
wastebasket according to the convenience or taste of the
registrant. Once the registrant has received notification,
according to this view, there is no reason for him to retain the
certificates. O'Brien notes that most of the information on a
registration certificate serves no notification purpose at all; the
registrant hardly needs to be told his address and physical
characteristics. We agree that the registration certificate
contains much information of which the registrant needs no
notification. This circumstance, however, does not lead to the
conclusion that the certificate serves no purpose, but that, like
the classification certificate, it serves purposes in addition to
initial notification. Many of these purposes would be defeated by
the certificates' destruction or mutilation. Among these are:

															1. The registration certificate serves as proof that the
individual described thereon has registered for the draft. The
classification certificate shows the eligibility classification of
a named but undescribed individual. Voluntarily displaying the two
certificates is an easy and painless way for a young man to dispel
a question as to whether he might be delinquent in his Selective
Service obligations. Correspondingly, the availability of the
certificates for such display relieves the Selective Service System
of the administrative burden it would otherwise have in verifying
the registration and classification of all suspected delinquents.
Further, since both certificates are in the nature of "receipts"
attesting that the registrant Page 391 U. S. 379 has done what the law requires, it is in the interest of the
just and efficient administration of the system that they be
continually available, in the event, for example, of a mix-up in
the registrant's file. Additionally, in a time of national crisis,
reasonable availability to each registrant of the two small cards
assures a rapid and uncomplicated means for determining his fitness
for immediate induction, no matter how distant in our mobile
society he may be from his local board.

															2. The information supplied on the certificates facilitates
communication between registrants and local boards, simplifying the
system and benefiting all concerned. To begin with, each
certificate bears the address of the registrant's local board, an
item unlikely to be committed to memory. Further, each card bears
the registrant's Selective Service number, and a registrant who has
his number readily available so that he can communicate it to his
local board when he supplies or requests information can make
simpler the board's task in locating his file. Finally, a
registrant's inquiry, particularly through a local board other than
his own, concerning his eligibility status is frequently answerable
simply on the basis of his classification certificate; whereas, if
the certificate were not reasonably available and the registrant
were uncertain of his classification, the task of answering his
questions would be considerably complicated.

															3. Both certificates carry continual reminders that the
registrant must notify his local board of any change of address,
and other specified changes in his status. The smooth functioning
of the system requires that local boards be continually aware of
the status and whereabouts of registrants, and the destruction of
certificates deprives the system of a potentially useful notice
device.

															4. The regulatory scheme involving Selective Service
certificates includes clearly valid prohibitions against the
alteration, forgery, or similar deceptive misuse of
certificates. Page 391 U. S. 380 The destruction or mutilation of certificates obviously
increases the difficulty of detecting and tracing abuses such as
these. Further, a mutilated certificate might itself be used for
deceptive purposes.

															The many functions performed by Selective Service certificates
establish beyond doubt that Congress has a legitimate and
substantial interest in preventing their wanton and unrestrained
destruction and assuring their continuing availability by punishing
people who knowingly and willfully destroy or mutilate them. And we
are unpersuaded that the preexistence of the nonpossession
regulations in any way negates this interest.

															In the absence of a question as to multiple punishment, it has
never been suggested that there is anything improper in Congress'
providing alternative statutory avenues of prosecution to assure
the effective protection of one and the same interest. Compare the majority and dissenting opinions in Gore
v. United States, 357 U. S. 386 (1958). [ Footnote 28 ] Here,
the preexisting avenue of prosecution was not even statutory.
Regulations may be modified or revoked from time to time by
administrative discretion. Certainly, the Congress may change or
supplement a regulation.

															Equally important, a comparison of the regulations with the 1965
Amendment indicates that they protect overlapping but not identical
governmental interests, and that they reach somewhat different
classes of wrongdoers. [ Footnote
29 ] The gravamen of the offense defined by the statute is the
deliberate rendering of certificates unavailable for the various
purposes which they may serve. Whether registrants keep their
certificates in their personal Page 391 U. S. 381 possession at all times, as required by the regulations, is of
no particular concern under the 1965 Amendment, as long as they do
not mutilate or destroy the certificates so as to render them
unavailable. Although as we note below we are not concerned here
with the nonpossession regulations, it is not inappropriate to
observe that the essential elements of nonpossession are not
identical with those of mutilation or destruction. Finally, the
1965 Amendment, like § 12(b), which it amended, is concerned with
abuses involving any issued Selective Service
certificates, not only with the registrant's own certificates. The
knowing destruction or mutilation of someone else's certificates
would therefore violate the statute, but not the nonpossession
regulations.

															We think it apparent that the continuing availability to each
registrant of his Selective Service certificates substantially
furthers the smooth and proper functioning of the system that
Congress has established to raise armies. We think it also apparent
that the Nation has a vital interest in having a system for raising
armies that functions with maximum efficiency and is capable of
easily and quickly responding to continually changing
circumstances. For these reasons, the Government has a substantial
interest in assuring the continuing availability of issued
Selective Service certificates.

															It is equally clear that the 1965 Amendment specifically
protects this substantial governmental interest. We perceive no
alternative means that would more precisely and narrowly assure the
continuing availability of issued Selective Service certificates
than a law which prohibits their willful mutilation or destruction. Compare Sherbert v. Verner, 374 U.
S. 398 , 374 U. S.
407 -408 (1963), and the cases cited therein. The 1965
Amendment prohibits such conduct and does nothing more. In other
words, both the governmental interest and the operation of the 1965
Amendment are limited to the noncommunicative Page 391 U. S. 382 aspect of O'Brien's conduct. The governmental interest and the
scope of the 1965 Amendment are limited to preventing harm to the
smooth and efficient functioning of the Selective Service System.
When O'Brien deliberately rendered unavailable his registration
certificate, he willfully frustrated this governmental interest.
For this noncommunicative impact of his conduct, and for nothing
else, he was convicted.

															The case at bar is therefore unlike one where the alleged
governmental interest in regulating conduct arises in some measure
because the communication allegedly integral to the conduct is
itself thought to be harmful. In Stromberg v. California, 283 U. S. 359 (1931), for example, this Court struck down a statutory phrase
which punished people who expressed their "opposition to organized
government" by displaying "any flag, badge, banner, or device."
Since the statute there was aimed at suppressing communication it
could not be sustained as a regulation of noncommunicative conduct. See also NLRB v. Fruit & Vegetable Packers Union, 377 U. S. 58 , 377 U. S. 79 (1964) (concurring opinion).

															In conclusion, we find that, because of the Government's
substantial interest in assuring the continuing availability of
issued Selective Service certificates, because amended § 462(b) is
an appropriately narrow means of protecting this interest and
condemns only the independent noncommunicative impact of conduct
within its reach, and because the noncommunicative impact of
O'Brien's act of burning his registration certificate frustrated
the Government's interest, a sufficient governmental interest has
been shown to justify O'Brien's conviction. III O'Brien finally argues that the 1965 Amendment is
unconstitutional as enacted because what he calls the "purpose" of
Congress was "to suppress freedom of Page 391 U. S. 383 speech." We reject this argument because under settled
principles the purpose of Congress, as O'Brien uses that term, is
not a basis for declaring this legislation unconstitutional.

															It is a familiar principle of constitutional law that this Court
will not strike down an otherwise constitutional statute on the
basis of an alleged illicit legislative motive. As the Court long
ago stated:

															"The decisions of this court from the beginning lend no support
whatever to the assumption that the judiciary may restrain the
exercise of lawful power on the assumption that a wrongful purpose
or motive has caused the power to be exerted." McCray v. United States, 195 U. S.
27 , 195 U. S. 56 (1904). This fundamental principle of constitutional adjudication
was reaffirmed and the many cases were collected by Mr. Justice
Brandeis for the Court in Arizona v. California, 23 U. S. 423 , 23 U. S. 455 (1931).

															Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation,
the Court will look to statements by legislators for guidance as to
the purpose of the legislature, [ Footnote 30 ] because the benefit to sound decisionmaking
in Page 391 U. S. 384 this circumstance is thought sufficient to risk the possibility
of misreading Congress' purpose. It is entirely a different matter
when we are asked to void a statute that is, under well settled
criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one
legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void
essentially on the ground that it is unwise legislation which
Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made
a "wiser" speech about it.

															O'Brien's position, and, to some extent, that of the court
below, rest upon a misunderstanding of Grosjean v. American
Press Co., 297 U. S. 233 (1936), and Gomillion v. Lightfoot, 364 U.
S. 339 (1960). These cases stand not for the proposition
that legislative motive is a proper basis for declaring a statute
unconstitutional, but that the inevitable effect of a statute on
its face may render it unconstitutional. Thus, in Grosjean, the Court, having concluded that the right of
publications to be free from certain kinds of taxes was a freedom
of the press protected by the First Amendment, struck down a
statute which on its face did nothing other than impose Page 391 U. S. 385 just such a tax. Similarly, in Gomillion, the Court
sustained a complaint which if true, established that the
"inevitable effect," 364 U.S. at 364 U. S. 341 ,
of the redrawing of municipal boundaries was to deprive the
petitioners of their right to vote for no reason other than that
they were Negro. In these cases, the purpose of the legislation was
irrelevant, because the inevitable effect -- the "necessary scope
and operation," McCray v. United States, 195 U. S.
27 , 195 U. S. 59 (1904) -- abridged constitutional rights. The statute attacked in
the instant case has no such inevitable unconstitutional effect,
since the destruction of Selective Service certificates is in no
respect inevitably or necessarily expressive. Accordingly, the
statute itself is constitutional.

															We think it not amiss, in passing, to comment upon O'Brien's
legislative purpose argument. There was little floor debate on this
legislation in either House. Only Senator Thurmond commented on its
substantive features in the Senate. 111 Cong.Rec.19746, 20433.
After his brief statement, and without any additional substantive
comments, the bill, H.R. 10306, passed the Senate. 111 Cong.Rec.
20434. In the House debate only two Congressmen addressed
themselves to the Amendment -- Congressmen Rivers and Bray. 111
Cong.Rec.19871, 19872. The bill was passed after their statements
without any further debate by a vote of 393 to 1. It is principally
on the basis of the statements by these three Congressmen that
O'Brien makes his congressional "purpose" argument. We note that,
if we were to examine legislative purpose in the instant case, we
would be obliged to consider not only these statements, but also
the more authoritative reports of the Senate and House Armed
Services Committees. The portions of those reports explaining the
purpose of the Amendment are reproduced in the 391
U.S. 367 app|>Appendix in their entirety. While both reports
make clear a concern with the "defiant" Page 391 U. S. 386 destruction of so-called "draft cards" and with "open"
encouragement to others to destroy their cards, both reports also
indicate that this concern stemmed from an apprehension that
unrestrained destruction of cards would disrupt the smooth
functioning of the Selective Service System. IV Since the 1965 Amendment to § 12(b)(3) of the Universal Military
Training and Service Act is constitutional as enacted and as
applied, the Court of Appeals should have affirmed the judgment of
conviction entered by the District Court. Accordingly, we vacate
the judgment of the Court of Appeals, and reinstate the judgment
and sentence of the District Court. This disposition makes
unnecessary consideration of O'Brien's claim that the Court of
Appeals erred in affirming hie conviction on the basis of the
nonpossession regulation. [ Footnote 31 ] It is so ordered. MR. JUSTICE MARSHALL took no part in the consideration or
decision of these cases.

															| 391
U.S. 367 app| APPENDIX TO OPINION OF THE COURT PORTIONS OF THE REPORTS OF THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND HOUSE EXPLAINING THE 1965 AMENDMENT The "Explanation of the Bill" in the Senate Report is as
follows:

															"Section 12(b)(3) of the Universal Military Training and Service
Act of 1951, as amended, provides, among other things, that a
person who forges, alters, or changes Page 391 U. S. 387 a draft registration certificate is subject to a fine of not
more than $10,000 or imprisonment of not more than 5 years, or
both. There is no explicit prohibition in this section against the
knowing destruction or mutilation of such cards."

															"The committee has taken notice of the defiant destruction and
mutilation of draft cards by dissident persons who disapprove of
national policy. If allowed to continue unchecked, this
contumacious conduct represents a potential threat to the exercise
of the power to raise and support armies."

															"For a person to be subject to fine or imprisonment, the
destruction or mutilation of the draft card must be 'knowingly'
done. This qualification is intended to protect persons who lose or
mutilate draft cards accidentally."

															S.Rep. No. 589, 89th Cong., 1st Sess. (1965). And the House
Report explained:

															"Section 12(b)(3) of the Universal Military Training and Service
Act of 1951, as amended, provides that a person who forges, alters,
or in any manner changes his draft registration card, or any
notation duly and validly inscribed thereon, will be subject to a
fine of $10,000 or imprisonment of not more than 5 years. H.R.
10306 would amend this provision to make it apply also to those
persons who knowingly destroy or knowingly mutilate a draft
registration card."

															"The House Committee on Armed Services is fully aware of, and
shares in, the deep concern expressed throughout the Nation over
the increasing incidences in which individuals and large groups of
individuals openly defy and encourage others to defy the authority
of their Government by destroying or mutilating their draft
cards."

															"While the present provisions of the Criminal Code with respect
to the destruction of Government property Page 391 U. S. 388 may appear broad enough to cover all acts having to do with the
mistreatment of draft cards in the possession of individuals, the
committee feels that, in the present critical situation of the
country, the acts of destroying or mutilating these cards are
offenses which pose such a grave threat to the security of the
Nation that no question whatsoever should be left as to the
intention of the Congress that such wanton and irresponsible acts
should be punished."

															"To this end, H.R. 10306 makes specific that knowingly
mutilating or knowingly destroying a draft card constitutes a
violation of the Universal Military Training and Service Act and is
punishable thereunder, and that a person who does so destroy or
mutilate a draft card will be subject to a fine of not more than
$10,000 or imprisonment of not more than 5 years."

															H.R.Rep. No. 747, 89th Cong., 1st Sess. (1965).

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

															[ Footnote 1 ]

															At the time of the burning, the agents knew only that O'Brien
and his three companions had burned small white cards. They later
discovered that the card O'Brien burned was his registration
certificate, and the undisputed assumption is that the same is true
of his companions.

															[ Footnote 2 ]

															He was sentenced under the Youth Corrections Act, 18 U.S.C. §
5010(b), to the custody of the Attorney General for a maximum
period of six years for supervision and treatment.

															[ Footnote 3 ]

															The issue of the constitutionality of the 1965 Amendment was
raised by counsel representing O'Brien in a pretrial motion to
dismiss the indictment. At trial and upon sentencing, O'Brien chose
to represent himself. He was represented by counsel on his appeal
to the Court of Appeals.

															[ Footnote 4 ] O'Brien v. United States, 376 F.2d 538 (C.A. 1st
Cir.1967).

															[ Footnote 5 ]

															The portion of 32 CFR relevant to the instant case was revised
as of January 1, 1967. Citations in this opinion are to the 1962
edition, which was in effect when O'Brien committed the crime and
when Congress enacted the 1965 Amendment.

															[ Footnote 6 ]

															The Court of Appeals nevertheless remanded the case to the
District Court to vacate the sentence and resentence O'Brien. In
the court's view, the district judge might have considered the
violation of the 1965 Amendment as an aggravating circumstance in
imposing sentence. The Court of Appeals subsequently denied
O'Brien's petition for a rehearing, in which he argued that he had
not been charged, tried, or convicted for nonpossession, and that
nonpossession was not a lesser included offense of mutilation or
destruction. O'Brien v. United States, 376 F.2d 538, 542
(C.A. 1st Cir. 1967).

															[ Footnote 7 ] United States v. Miller, 367 F.2d 72 (C.A.2d Cir.1966), cert. denied, 386 U.S. 911 (1967).

															[ Footnote 8 ] Smith v. United States, 368 F.2d 529 (C.A. 8th
Cir.1966).

															[ Footnote 9 ] See 62 Stat. 605, as amended, 65 Stat. 76, 50
U.S.C.App. § 453; 32 CFR § 1613.1 (1962).

															[ Footnote 10 ]

															32 CFR § 1621.2 (1962).

															[ Footnote 11 ]

															32 CFR § 1613.43a (1962).

															[ Footnote 12 ]

															32 CFR §§ 1621.9, 1623.1 (1962).

															[ Footnote 13 ]

															32 CFR §§ 1623.1, 1623.2 (1962).

															[ Footnote 14 ]

															32 CFR § 1623.4 (1962).

															[ Footnote 15 ]

															32 CFR § 1625.1 (1962).

															[ Footnote 16 ]

															32 CFR §§ 1625.1, 1625.2, 1625.3, 1625.4, and 1625.11
(1962).

															[ Footnote 17 ]

															32 CFR § 1625.12 (1962).

															[ Footnote 18 ]

															32 CFR § 1621.2 (1962).

															[ Footnote 19 ]

															32 CFR § 1617.1 (1962), provides, in relevant part:

															"Every person required to present himself for and submit to
registration must., after he is registered, have in his personal
possession at all times his Registration Certificate (SSS Form No.
2) prepared by his local board which has not been altered and on
which no notation duly and validly inscribed thereon has been
changed in any manner after its preparation by the local board. The
failure of any person to have his Registration Certificate (SSS
Form No. 2) in his personal possession shall be prima
facie evidence of his failure to register."

															[ Footnote 20 ]

															32 CFR § 1623.5 (1962), provides, in relevant part:

															"Every person who has been classified by a local board must have
in his personal possession at all times, in addition to his
Registration Certificate (SSS Form No. 2), a valid Notice of
Classification (SSS Form No. 110) issued to him showing his current
classification."

															[ Footnote 21 ] See text, infra at 391 U. S.
382 .

															[ Footnote 22 ] NAACP v. Button, 371 U. S. 415 , 371 U. S. 438 (1963); see also Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 403 (1963).

															[ Footnote 23 ] NAACP v. Button, 371 U. S. 415 , 371 U. S. 444 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449 , 357 U. S. 464 (1958).

															[ Footnote 24 ] Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 524 (1960).

															[ Footnote 25 ] Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 (1945); see also Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 406 (1963).

															[ Footnote 26 ] Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 524 (1960).

															[ Footnote 27 ] Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 408 (1963).

															[ Footnote 28 ] Cf. Milanovich v. United States, 365 U.
S. 551 (1961); Hein v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U.
S. 322 (1957).

															[ Footnote 29 ] Cf. Milanovich v. United States, 365 U.
S. 551 (1961); Heflin v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U.
S. 322 (1957).

															[ Footnote 30 ]

															The Court may make the same assumption in a very limited and
well defined class of cases where the very nature of the
constitutional question requires an inquiry into legislative
purpose. The principal class of cases is readily apparent -- those
in which statutes have been challenged as bills of attainder. This
Court's decisions have defined a bill of attainder as a legislative
Act which inflicts punishment on named individuals or members of an
easily ascertainable group without a judicial trial. In determining
whether a particular statute is a bill of attainder, the analysis
necessarily requires an inquiry into whether the three definitional
elements -- specificity in identification, punishment, and lack of
a judicial trial -- are contained in the statute. The inquiry into
whether the challenged statute contains the necessary element of
punishment has on occasion led the Court to examine the legislative
motive in enacting the statute. See, e.g., United States v.
Lovett, 328 U. S. 303 (1946). Two other decisions not involving a bill of attainder
analysis contain an inquiry into legislative purpose or motive of
the type that O'Brien suggests we engage in in this case. Kennedy v. Mendoza-Martinez, 372 U.
S. 144 , 372 U. S.
169 -184 (1963); Trop v. Dulles, 356 U. S.
86 , 356 U. S. 95 -97
(1958). The inquiry into legislative purpose or motive in Kennedy and Trop, however, was for the same
limited purpose as in the bill of attainder decisions -- i.e., to determine whether the statutes under review were
punitive in nature. We face no such inquiry in this case. The 1965
Amendment to § 462(b) was clearly penal in nature, designed to
impose criminal punishment for designated acts.

															[ Footnote 31 ]

															The other issues briefed by O'Brien were not raised in the
petition for certiorari in No. 232 or in the cross-petition in No.
233. Accordingly, those issues are not before the Court.

															MR. JUSTICE HARLAN, concurring.

															The crux of the Court's opinion, which I join, is, of course,
its general statement, ante at 391 U. S. 377 that:

															"a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression, and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest."

															I wish to make explicit my understanding that this passage does
not foreclose consideration of First Amendment claims in those rare
instances when an "incidental" restriction upon expression, imposed
by a regulation which furthers an "important or substantial"
governmental interest and satisfies the Court's other criteria, in
practice has the effect of entirely preventing a "speaker" Page 391 U. S. 389 from reaching a significant audience with whom he could not
otherwise lawfully communicate. This is not such a case, since
O'Brien manifestly could have conveyed his message in many ways
other than by burning his draft card.

															MR. JUSTICE DOUGLAS, dissenting.

															The Court states that the constitutional power of Congress to
raise and support armies is "broad and sweeping", and that
Congress' power "to classify and conscript manpower for military
service is beyond question.'" This is undoubtedly true in times
when, by declaration of Congress, the Nation is in a state of war.
The underlying and basic problem in this case, however, is whether
conscription is permissible in the absence of a declaration of war.
[ Footnote 2/1 ] That question has
not been briefed nor was it presented in oral argument; but it is,
I submit, a question upon which the litigants and the country are
entitled to a ruling. I have discussed in Holmes v. United
States, post, p. 936, the nature of the legal issue, and it
will be seen from my dissenting opinion in that case that this
Court has never ruled on Page 391 U. S. 390 the question. It is time that we made a ruling. This case should
be put down for reargument and heard with Holmes v. United
States and with Hart v. United States, post, p. 956,
in which the Court today denies certiorari. [ Footnote 2/2 ]

															The rule that this Court will not consider issues not raised by
the parties is not inflexible, and yields in "exceptional cases"
( Duignan v. United States, 274 U.
S. 195 , 274 U. S. 200 ) to
the need correctly to decide the case before the court. E.g.,
Erie R. Co. v. Tompkins, 304 U. S. 64 ; Terminiello v. Chicago, 337 U. S. 1 .

															In such a case, it is not unusual to ask for reargument
( Sherman v. United States, 356 U.
S. 369 , 356 U. S. 379 ,
n. 2, Frankfurter, J., concurring) even on a constitutional
question not raised by the parties. In Abel v. United
States, 362 U. S. 217 , the
petitioner had conceded that an administrative deportation arrest
warrant would be valid for its limited purpose even though not
supported by a sworn affidavit stating probable cause; but the
Court ordered reargument on the question whether the warrant had
been validly issued in petitioner's case. 362 U.S. at 362 U. S. 219 ,
n., par. 1; 359 U.S. 940. In Lustig v United States, 338 U. S. 74 , the
petitioner argued that an exclusionary rule should apply to the
fruit of an unreasonable search by state officials solely because
they acted in concert with federal officers ( see Weeks v.
United States, 232 U. S. 383 ; Byars v. United States, 273 U. S. 28 ). The
Court ordered reargument on the question raised in a then pending
case, Wolf v. Colorado, 338 U. S. 25 :
applicability of the Fourth Amendment to the States. U.S.Sup.Ct.
Journal, October Term, 1947, p. 298. In Donaldson v. Read
Magazine, 333 U. S. 178 , the
only issue presented, Page 391 U. S. 391 according to both parties, was whether the record contained
sufficient evidence of fraud to uphold an order of the Postmaster
General. Reargument was ordered on the constitutional issue of
abridgment of First Amendment freedoms. 333 U.S. at 333 U. S.
181 -182; Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U. S. 95 , 333 U. S. 96 ,
reargument was ordered on the question of unconstitutional
vagueness of a criminal statute, an issue not raised by the parties
but suggested at oral argument by Justice Jackson. Journal, October
Term, 1947, p. 87.

															These precedents demonstrate the appropriateness of restoring
the instant case to the calendar for reargument on the question of
the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United
States. [ Footnote 2/1 ]

															Neither of the decisions cited by the majority for the
proposition that Congress' power to conscript men into the armed
services is " beyond question'" concerns peacetime conscription.
As I have shown in my dissenting opinion in Holmes v. United
States, post, p. 936, the Selective Draft Law Cases, 245 U. S. 366 ,
decided in 1918, upheld the constitutionality of a conscription act
passed by Congress more than a month after war had been declared on
the German Empire and which was then being enforced in time of war. Lichter v. United States, 334 U.
S. 742 , concerned the constitutionality of the
Renegotiation Act, another wartime measure, enacted by Congress
over the period of 1942-1945 ( id. at 334 U. S. 745 ,
n. 1) and applied in that case to excessive war profits made in
1942-1943 ( id. at 334 U. S. 753 ). War had been declared, of course, in
1941 (55 Stat. 795). The Court referred to Congress' power to raise
armies in discussing the "background" (334 U.S. at 334 U. S. 753 )
of the Renegotiation Act, which it upheld as a valid exercise of
the War Power. [ Footnote 2/2 ]

															Today the Court also denies stays in Shiffman v. Selective
Service Board No. 5, and Zigmond v. Selective Service
Board No. 16, post, p. 930, where punitive delinquency
regulations are invoked against registrants, decisions that present
a related question.