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United States v. Miller

decided: October 13, 1966.

UNITED STATES OF AMERICA, APPELLEE,
v.
DAVID J. MILLER, DEFENDANT-APPELLANT



Lumbard, Chief Judge, and Moore and Feinberg, Circuit Judges.

Author: Feinberg

FEINBERG, Circuit Judge:

This case raises perplexing issues of whether symbolic conduct is speech embraced by the First Amendment and the extent of its protection thereunder. The appeal challenges the constitutionality of a federal statute prohibiting the destruction of Selective Service certificates; the ultimate question before the court is the power of Congress to enact the legislation. The constitutional issues are raised by David J. Miller, who appeals from a judgment convicting him of knowingly destroying a Selective Service System Notice of Classification. Appellant was tried without a jury before Judge Tyler in the Southern District of New York. Taking into account Miller's sincerity and background, the judge suspended execution of a sentence of three years' imprisonment and placed appellant on two years' probation.*fn1 We hold the statute constitutional and affirm the conviction.

I. The Statute and the Facts

Appellant was convicted of violating section 12(b) (3) of the Universal Military Service and Training Act ("the Act"), as amended by 79 Stat. 586 (1965), 50 U.S.C.App. § 462(b) (3) (Supp. I, 1965). In August 1965, that section was amended to prohibit the knowing destruction or mutilation of a Selective Service certificate; the amended statute was the basis of appellant's conviction.*fn2 Judge Tyler found it undisputed that on October 15, 1965, at a street rally near the Army Building at 39 Whitehall Street in Manhattan, appellant burned his "draft card."*fn3 Appellant performed this act in the course of giving a speech; he believed the burning to be a symbolic protest against the draft, the military action in Vietnam, and "the draft card burning law itself." The court further found that other methods of speech used at the rally, although less dramatic than appellant's action, served as reasonably effective communication of the ideas involved.*fn4 Before considering appellant's arguments, it is instructive to examine the history of the statute under discussion.

Even prior to the August 1965 amendment, section 12(b) of the Act stringently regulated the physical certificates issued by the Selective Service System. It was thus illegal -- with improper intent -- to transfer a certificate to aid a person in making a false identification or representation, or to possess a certificate not duly issued to oneself for those purposes, or to forge, alter "or in any manner" change a certificate or any notation validly inscribed thereon, or to photograph or make an imitation of a certificate for false identification purposes, or to possess a counterfeited or altered certificate. In addition, under the authority delegated him by Congress (section 10(b) (1) of the Act), the President had promulgated a regulation requiring those who have been classified by a local board to have in their personal possession at all times the Notice of Classification (SSS Form No. 110), except when entering upon active duty into the Armed Forces, when the certificate must be surrendered for destruction. 32 C.F.R. § 1623.5 (1962). Violation of this regulation was made a felony by section 12(b) (6) of the Act.*fn5

The Notice of Classification itself is a white card, about the thickness of a postcard, and about two inches by three inches in size. The front of the Notice burned by appellant was in the following form:

SELECTIVE SERVICE SYSTEM

NOTICE OF CLASSIFICATION

(First name)

(Middle initial)

(Last name)

Selective Service No.

is classified in Class until

by Local Board,

by Appeal Board vote of ...


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