Appeals: The Card Is Not for Burning

After brief debate one hot August afternoon last year, the House voted 393 to 1 for a bill making it a federal felony to knowingly destroy or mutilate a draft card. HR 10306, which the Senate passed by a voice vote, was aimed at what its proponents described as “beatniks and so-called ‘campus cults,’ ” meaning anyone who burns his draft card to protest U.S. policy in Viet Nam. Penalty: five years’ imprisonment or a $10,000 fine or both.

After publicly burning his card as a “symbolic protest” in Manhattan last fall, Catholic Pacifist David R. Miller, 23, became the first person to be convicted under the new law. By his own choice, Miller was tried without a jury, and he argued that the law denied his First Amendment rights of free speech and protest. U.S. District Judge Harold Tyler Jr. was not impressed; he gave Miller a three-year sentence, suspending it on condition that he carry a new card and obey all lawful draft board orders. Last week the U.S. Court of Appeals upheld Tyler’s decision, thus endorsing the new law as constitutional.

Congress’s power to punish utterances that obstruct military recruiting or war activities was upheld in Schenck v. U.S. (1919), when the Supreme Court sustained the World War I Espionage Acts. In Schenck, however, Justice Holmes also declared that such utterances can be punished only if they 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.” Miller and his lawyers insist that burning a draft card endangers no one except the burner. They point out that all the information on the card—and much more—is also on file with the draft board. Besides, the new law is redundant: even before it was passed, another law made it a crime to be in “willful non-possession” of a draft card. In short, say Miller and other critics, the anti-burning law actually punishes nondangerous “speech.”

Speaking for the U.S. appellate court, Judge Wilfred Feinberg flatly rebuffed Miller’s claim that the First Amendment protects card-burning as “symbolic speech.” Miller and “those who agree with him,” said the court, “remain free, as indeed they should be, to criticize national policy as they desire by the written or spoken word; they are simply not free to destroy selective-service certificates.” In short, as the court sees it, the law does not curb speech; it merely “reinforces an obligation which has been imposed on registrants for many years.” Still unconvinced, Miller says he will appeal to the Supreme Court.