The Supreme Court: Burning Words, Yes Burning Cards, No

After publicly burning his draft card as a “symbolic protest” in Manhattan in 1965, Roman Catholic Pacifist David J. Miller, 24, became the first person to be convicted under a new law that makes card burning punishable by a $10,000 fine or five years’ imprisonment, or both. When Miller appealed his suspended three-year sentence, he argued that Congress had enacted the law deliberately to suppress dissent. Indeed, the bill’s proponents made no secret of the fact that it was aimed at “beatniks”—meaning critics of the U.S. war effort in Viet Nam.

Last fall Miller lost his case in the U.S. Appellate Court. Last week the Supreme Court refused to review it. Whether the Justices think the law constitutional or whether they did not want to tackle that issue now may never be known. By their refusal to act, however, they left standing a new rule that the First Amendment right to utter burning words does not protect the act of burning draft cards.

Unbalancing Holmes. In rejecting Miller’s argument last fall, the Appellate Court pointed out that Congress is fully empowered to regulate the draft; the card-burning law, which amends the Selective Service Act, simply strengthened “an already existing regulatory scheme.” If a law is thus constitutional on its face, said the court, judges are not ordinarily supposed to probe its sponsors’ “real” motives.

Miller’s lawyers tried to dig deeper: they argued that the First Amendment protects card burning as “symbolic speech,” and they urged the court to apply Justice Holmes’s famous dictum that mere words cannot be punished unless they create “a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Miller & Co. insisted that burning a draft card endangers no one except the burner. The information on the card is already on file; moreover, another law makes it a crime to be in “willful nonpossession” of a draft card. In short, they argued, the antiburning law deliberately punishes what is in effect nondangerous “speech.”

Balancing Dissent. The Appellate Court flatly refused to raise a protective umbrella over all “symbolic conduct”—noting that such a broad interpretation might include anything from a “thumbs-down gesture to political assassination.” Most important, it rejected the Holmes test. Instead, it followed the Supreme Court’s recent tendency to “balance” the interests served by a statute v. free speech. Draft cards are vital to running the draft, said the Appellate Court. They backstop lost records and help control evaders. The need to retain them takes precedence over any alleged right to burn them. Holmesians might be troubled, but the decision hardly suppressed the right to dissent. David 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.”