Petition for Writ of Certiorari — Niger v. United States

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Supreme Court of the United States

Octoser Term, 1969

No. 1303

ee :

Peter Niven KiceEr,

Petitioner,

—against—

Unitep STaTEs OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Marvin M. KarpaTKIN

1345 Avenue of the Americas

New York, New York 10019

Awan H. Levine

c/o New York Civil

Liberties Union

156 Fifth Avenue

New York, New York 10010

Attorneys for Petitioner

EDEL LEE RII LIE IE NEAR OY TELE Nt ac ote Since

TABLE OF CONTENTS

PAGE

Citations to Opinions Below 1

Jurisdiction 9

Questions Presented for Review

Constitutional Provisions, Statutes and Regulations

Involved

Statement of the Case

1) Condonation

2) Absence of Effective Selective Service Liability 10

3) Access to Significant Audience Through Mass

Media

4) Nolo Contendere

Reasons for Granting the Writ

I. Inasmuch as the duplicate notice of classification

which petitioner burned was sent to him by his

local board, in violation of Selective Service

regulations, after he requested it for the stated

purpose of symbolie burning, the action of the

board constituted implied condonation, thus ren-

dering his conviction in violation of due proc-

cess under the principles of the Raley-Cox doc-

SN eailaasbiveendhetialciieitiiiets idkescceaciesaladslihdiseiiinstinaces

II. The decision of this Court in United States v.

O’Brien merits reconsideration in the light of

the substantial and serious criticism which has

been directed at its constitutional soundness,

as well as the importance of establishing more

definitive guidelines to deal with cases involv-

ing symbolic expression

PAGE

THI. The statute may not be constitutionally applied

to a registrant who is beyond the age of any - -

effective selective service atte on: 2

IV. Since the guarantee of free speech protects the

right to compete effectively in the marketplace

of ideas—the right to communicate with a sig-

nificant audience—and since the facts of this

cease show that petitioner burned his draft card

because of his inability to otherwise have ac-

cess to the media, the conviction for burning

his draft card violated his rights under the First

Amendment -

A. Kiger Had Been Unable to Reach a Signif-

icant Audience Through the Traditional

Forms of Protest 31

B. Competition in the Marketplace of Ideas De-

pends on the Effective Opportunity to Reach

a Significant Audience 39

C. The Ability to Reach a Significant Audience

Depends on Gaining Access to the Mass

Media 35

Peewee ennccecese

V. The District Court abused its discretion in re-

fusing to accept a plea of nolo contendere

ConcLusion

APPENDIX

Opinion of the United States Court of Appeals ....PA1

Opinion of the United States District Court for

the Southern District of New York

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iii

TABLE OF AUTHORITIES

PAGE

Cases:

Adderley v. Florida, 385 U.S. 39 (1966) 30

Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, 391 U.S. 308 (1968) ........... 23, 33-34

Bates v. Little Rock, 361 U.S. 516 (1960) 21

Brandenberg v. Ohio, 395 U.S. 444 (1969) ............-...-..-+- 20

Cole v. Arkansas, 333 U.S. 196 (1948) 13

Cowgill v. California, —— U.S. ——, 24 L.ed.2d 590

(1970) 25

Cox v. Louisiana, 379 U.S. 559 (1965) ....2, 3, 13, 14, 15, 16, 17

DeJonge v. Oregon, 299 U.S. 353 (1937) 13

Ex parte Jackson, 96 U.S. 727 (1877) 30

Galvan v. Press, 347 U.S. 522 (1954) 27

Hague v. CIO, 307 U.S. 496 (1939) 33

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .... 27

Kovacs v. Cooper, 336 U.S. 77 (1949) 36

Mason v. United States, 250 F.2d 704 (10th Cir. 1957) .. 40

Mickler v. Fahs, 243 F.2d 515 (5th Cir. 1957) ............... 37

Miller v. United States, 388 F.2d 973 (9th Cir. 1967) .. 15

Mills v. Alabama, 384 U.S. 214 (1966) 33, 34

Murray v. Blatchford, —— F.Supp. ——, 38 U.S.L.W.

2381 (D.R.I. Dec. 24, 1969) 15

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958) 21

NAACP v. Button, 371 U.S. 415 (1963) 21

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PAGE

N.L.R.B. v. Guernsey-Muskingum Electric Co-Opera.

tive, Inc., 285 F.2d 8 (6th Cir. BNE vetiininncmaniaie 4

O’Brien v. United States, 376 F.2d 538 tg eens 14

People v. Donovan, 53 Misc.2d 409, 279 N.Y.S.2d 404

GOD seihsteeessrtim QAcnmas celta ocrciencnisccasn ee 14

People v. Markowitz, 18 N.Y.2d 953, 277 N.Y.S.2d 149

(1966) 13,17

Piassick v. United States, 253 F.2d 658 (5th Cir. 1958) 37

Raley v. Ohio, 360 U.S. 423 (1959) ...... 2, 3, 13, 14, 15, 16, 17

Red Lion Broadcasting Company v. i"ederal Commu.

nications Commission, 395 U.S. 367 (1969) ............., 35, 36

Saia v. New York, 334 U.S. 558 (1948) 33

Schneider v. State, 308 U.S. 147 (1939) 33

Service v. Dulles, 354 U.S. 363 (1957) 15

Sherbert v. Verner, 374 U.S. 398 So: RIND 21

Sorrells v. United States, 287 U.S. 435 (| Ree 16

1969) 15

Street v. New York, 394 U.S. 593 (1969) 5

Stromberg v. California, 2883 U.S. 359 , nee 34

Thomas v. Collins, 323 U.S. 516 (1945) 21

Tinker v. Des Moines, 393 U.S. 503 SRE sinecereaae 5

United States v. Chin Doong Art, 193 F. Supp. 820

(E.D.N.Y. 1961) 38

United States v. Cigarette Merchandisers Association,

136 F. Supp. 212 (S.D.N.Y. 1955) 39

United States v. Engelhard-Hanovia, Inc., 252 F. Supp.

605 (S.D.N.Y. 1964) 38

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PAGE

United States v. Hanna Nickel Smelting Company, 253

F.Supp. 784 (D. Ore. 1966), aff’d 400 F.2d 944 (9th

Cir. 1968) 16-17

United States v. Jones, 119 F. Supp. 288 (S.D. Calif.

1954)

United States v. Miller, 367 F.2d 72 (2d Cir. 1966) ........ 14

United States v. Murdock, 290 U.S. 309 (1933) ............ 16

United States v. O’Brien, 391 U.S. 367 (1968) ..3, 4, 18, 19,

20, 21, 22, 25, 26, 27, 28, 29, 37

United States v. Robel, 389 U.S. 258 (1967) ...................- 27

United States v. Safeway Stores, 20 F.R.D. 451 (N.D.

Tex. 1951) 39

United States v. Sansone, 385 F.2d 247 (7th Cir. 1967) .. 16

United States v. Standard Ultramarine and Color Co.,

137 F. Supp. 167 (S.D.N.Y. 1955) 38

United States v. Toussie, 38 U.S.L.W. 4181 (Mar. 2,

1970) 18

United States v. Universal C. I. T. Credit Corp., 344

U.S. 218 (1952) 18

Vitarelli v. Seaton, 359 U.S. 535 (1959) 15

Whitney v. California, 274 U.S. 357 (1927) -........000....... 20

Wolff v. Selective Service Local Board #16, 372 F.2d

817 (2d Cir. 1967) 27

Wolin v. Port of New York Authority, 268 F. Supp.

855, aff’d 392 F.2d 83 (2d Cir. 1968) 34

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.

579 (1952) 27

Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969) .... 34

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Constitutional Provisions:

United States Constitution

PAGE

First Amendment 4, 18, 22, 29, 30, 33,

: 34, 35, 36, 37

a Nie ese ET 4

Statutes:

28 U.S.C. §1254(1) Nie

50 U.S.C. App. §462(b) (3) . 48

P.L. 89-152, 79 Stat. 586 :

Regulations:

32 C.F.R. §1623.7 6, 9, 14, 15

32 C.F.R. §1631.7 7, 10

Rules:

Federal Rules of Criminal Procedure

Rule 11 - 12, 37

Supreme Court Rules

Rule 21(1) 8

Other Authorities:

1966 Ayer Directory of Newspapers and Periodicals

(McAllister ed., 1966)

1967 Ayer Directory of N ewspapers and Periodicals

(Bray ed., 1967)

Alfange, Free Speech and Symbolic Conduct: The

Draft-Card Burning Case, 1968 Tur Supreme Court

Review 1 (1968)

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19, 22, 23, 24

vii

PAGE

9 A.L.R.2d 540 : 40

Barron, Access to the Press—A Ne ew First Amendment

Right, 80 Harv. L. Rev. 1641 (1967) 32

Barron, An Emerging Right of Access to the Media?,

37 Geo. Wasu. L. Rev. 487 (1969) 32

Emerson, Freedom of Expression in Wartime, 116

U. Pa. L. Rev. 975 (1968) 19, 22, 23

Forkosch, Draft Card Burning—Effectuation and Con-

stitutionality of the 1965 Amendment, 32 Bxtyn. L.

Rev. 303 (1966) 19

Henkin, Foreword: On Drawing Lines, The Supreme

Court—1967 Term, 82 Harv. L. Rev. 63 (1968) ...... 19, 21,

22, 25

Katz, When a Nation Is at War—The Supreme Court

in a Post-Utopian Era, 23 Ruterrs L. Rev. 1 (1968) .. 19

Lewis, A Talk With Warren on Crime, the Court, the

Country, The New York Times Magazine, October

19, 1969, p. 34 26

Mote, 8 Pomrta Lg. SB (1967) ~-...-.n2eevecncecocecerereresasesee 19

Note, 6 San Disco L. Rev. 81 (1969) 19

Note, 14 How. L.J. 186 (1968) 19

Note, 20 Syr. L. Rev. 98 (1968) 19

Note, 37 Gro. Wasn. L. Rev. 596 (1969) ........ 19, 22, 23, 24

Note, 40 Tun. L. Rev. 185 (1965) 17

Note, 78 Yate L.J. 1046 (1969) 13, 17

Note, Symbolic Conduct, 68 Corum. L. Rev. 1091

(1968) 19, 24

Rachlin, Draft Cards and Burning the Constitution, 32

Briyn. L. Rev. 334 (1966) 19

Rosen, Civil Disobedience and Other Such Techniques:

Law Making Through Law Breaking, 37 Gro. Wasx.

L. Rev. 435 (1969) 19

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viii

Ulmer, An Empirical Analysis of Selected Aspects of

Lawmaking of the United States Supreme Court, 8

J. or Pus. L. 414 (1959) —_ 2

Velvel, Freedom of Speech and the Draft-Card Burn.

ing Cases, 16 Kans. L. Rev. 149 ee 19

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Supreme Court of the United States

Octoser Term, 1969

Ry cumininnse

Peter Niven Kicer,

Petitioner,

—against—

Unrrep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Cireuit, entered in the above entitled case on

January 26, 1970.

Citations to Opinions Below

The opinion by the United States District Court for the

Southern District of New York, Hon. Frederick van Pelt

Bryan, U.S.D.J., is reported at 297 F. Supp. 339 (S.D.N.Y.

1969) and is printed in the appendix hereto, PA 3-14.* The

opinion of the United States Court of Appeals, affirming

the conviction below on the opinion below, not yet reported,

is printed at PA 1-2.

*“PA...” refers to the appendix hereto.

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Jurisdiction

The judgment of the United States Court of Appeals

was entered on January 26, 1970. On February 20, 1970,

Mr. Justice Harlan issued an order extending the time

within which to file this petition for writ of certiorari up

to and including March 12, 1970. On March 10, 1970, Mr.

Justice Harlan issued an order further extending the time

within which to file this petition for writ of certiorari up

to and including March 27, 1970. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

Questions Presented for Review

1. Whether, in the face of the petitioner’s written re.

quest to a local board for a duplicate notice of classification,

for the stated purpose of burning it as a symbolic expres-

sion of anti-war dissent, the action of the local board in

immediately mailing to him the document requested,

in violation of Selective Service Regulations pertaining to

the issuance of duplicates, coupled with the failure of the

local board to inform the petitioner of the illegality of his

proposed action, in the light of a prior similar incident in

which the same board advised the same registrant of his

legal obligations, constituted an implied condonation of

petitioner’s conduct, thereby rendering his conviction, un-

der these circumstances, a violation of due process of law

under the principles established in Raley v. Ohio, 360 US.

423 (1959), and Cox v. Louisiana, 379 U.S. 559 (1965)?

2. Whether the action of the local board in sending peti-

tioner a duplicate notice of classification under these am-

biguous circumstances, justifiably lead the petitioner to

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pelieve that the newly enacted amendment punishing draft

card burning was not applicable to him, thus rendering his

conviction a violation of due process under the Raley-Cox

doctrine?

3. Whether the decision of the United States Supreme

Court in United States v. O’Brien, 391 US. 367 (1968),

upholding the constitutionality of the punishment of draft

card burning, should be reexamined in the light of the

substantial and serious criticism which the decision has

received ?

4. Whether language in the O’Brien decision, which ap-

pears to place certain limits on the constitutional power to

punish draft card burning in terms of those individuals

who are effectively liable for training and service, and the

reasonableness of the applicable regulations, requires a

holding that the constitutionally tolerable limits have been

surpassed in this case, where the registrant was outside

the zone of any effective liability?

5. Whether in the proper application of the balancing

test to determine if an infringement of freedom of expres-

sion is constitutionally permissible, a different balance

must be struck in this case than that struck by the Supreme

Court in the O’Brien case, inasmuch as:

(a) Unlike O’Brien, petitioner was past the age of

any effective liability; and

(b) Unlike O’Brien, petitioner proved at the trial

that he lacked access to the media and that the purpose

of his draft card burning was to attempt to communi-

cate with a significant audience with whom he could

not otherwise lawfully communicate?

ee Fmt Came+t~aen ms mean 1...

4 %\

6. Whether the understanding of the majority opinion

expressed by Mr. Justice Harlan in his concurring opinion

in the O’Brien case, to the effect that there is a valid First

Amendment claim where an “incidental” restriction upon

free expression has, in practice, the effect of prevent

communication with a significant audience with whom com.

munication would otherwise be impossible, was met by the

proof presented on behalf of petitioner in this case, and,

consequently, whether his conviction must be reversed on

First Amendment grounds?

7. Whether the trial court abused its discretion in refys.

ing to accept the tendered offer of a plea of nolo contenderet

8. Whether the acceptance of a plea of nolo contendere

is completely within the discretion of the trial judge, or

whether any limits must be set in terms of disproportion,

types of cases, infractions based on peaceful acts of con.

science, or otherwise?

Constitutional Provisions, Statutes

and Regulations Involved

This case involves the First and Fifth Amendments to

the United States Constitution.

The statute involved is P.L. 89-152, 79 Stat. 586, enacted

on August 30, 1965, which adds certain language to Section

12(b) (3) of the Act, 50 U.S.C. App. §462(b) (3), as follows:

(b) Any person (1) who knowingly transfers or

delivers to another, for the purpose of aiding or abet-

ting the making of any false identification or represen-

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tation, any registration certificate, alien’s certificate of

nonresidence, or any other certificate issued pursuant

to or prescribed by the provisions of this title (sec-

tions 451-454, 455-471 of this Appendix); or rules or

regulations promulgated hereunder; or (2) who, with

intent that it be used for any purpose of false identifi-

cation or representation, has in his possession any such

certificate not duly issued to him; or (3) who forges,

alters, knowingly destroys, knowingly mutilates, or in

any manner changes any such certificate or any nota-

tion duly and validly inscribed thereon; or (4) who,

with intent that it be used for any purpose of false

identification or representation, photographs, prints,

or in any manner makes or executes any engraving,

photograph, print, or impression in the likeness of any

such certificate, or any colorable imitation thereof; or

(5) who has in his possession any certificate purport-

ing to be a certificate issued pursuant to this title (said

sections), or rules and regulations promulgated here-

under, which he knows to be falsely made, reproduced,

forged, counterfeited, or altered; or (6) who knowingly

violates or evades any of the provisions of this title

(said sections) or rules and regulations promulgated

pursuant thereto relating to the issuance, transfer, or

possession of such certificate, shall, upon conviction,

be fined not to exceed $10,000 or be imprisoned for not

more than five years, or both. Whenever on trial for a

violation of this subsection the defendant is shown to

have or to have had possession of any certificate not

duly issued to him, such possession shall be deemed

sufficient evidence to establish an intent to use such

certificate for purposes of false identification or repre-

sentation, unless the defendant explains such posses-

lalat@«-.4an-te. hit,

sion to the satisfaction of the jury. (Language j in.

serted by amendment emphasised. )

Certain provisions of the Selective Service Regulations

are likewise involved:

32 C.F.R. §1623.7:

1623.7 Issuing a Duplicate of a Lost, Destroyed,

Mislaid, or Stolen Notice of Classification (SSS Form

110).—A duplicate Notice of Classification (SSS Form

110) may be issued to a registrant only by the local

board which mailed the original Notice of Classifica.

tion (SSS Form 110) to him upon his written request

therefor made by letter or on a Request for Duplicate

Registration Certificate or Notice of Classification

(SSS Form 6) and the presentation of proof satis.

factory to the local board that his Notice of Classi.

fication (SSS Form 110) has been lost, destroyed, mis-

laid, or stolen. When the request for the duplicate

notice is made by a letter which does not present suff-

cient information concerning the basis for the request,

the local board shall mail to the registrant a copy of

Request for Duplicate Registration Certificate or No-

tice of Classification (SSS Form 6) and direct him to

complete thereon and return to the local board the

request for the duplicate notice. Whenever the local

board issues a duplicate Notice of Classification (SSS

Form 110), it shall mark it “Duplicate” and note the

issuance of such notice upon the request, which shall

be filed in the registrant’s Cover Sheet (SSS Form

101).

§1631.7 of the Selective Service Regulations reads in

pertinent pert as follows:

§1631.7 Action by local board upon receipt of notice

of call.

(a) When a call is placed without designation of

age group or groups, each local board, upon receiv-

ing a Notice of Call on Local Board (SSS Form No.

201) from the State Director of Selective Service (1)

for a specified number of men to be delivered for

induction, . . . shall select and order to report for in-

duction the number of men required to fill the call from

among its registrants who have been classified in Class

I-A and Class I-A-O and have been found acceptable

for service in the Armed Forces and to whom the local

poard has mailed a Statement of Acceptability (DD

Form No. 62) at least 21 days before the date fixed

for induction: ... Such registrants, including those

in a medical, dental, or allied specialist category, shall

be selected and ordered to report for induction in the

following order:

(1) Delinquents...

(2) Volunteers...

(3) Nonvolunteers who have attained the age of

19 years and have not attained the age of 26 years...

(4) Nonvolunteers who have attained the age of

19 years and have not attained the age of 26 years

and who have a wife... .

(5) Nonvolunteers who have attained the age of

26 years in the order of their dates of birth with the

youngest being selected first.

‘Statement of the Case

Petitioner seeks certiorari from a judgment of conviction

rendered by the United States District Court for the South.

ern District of New York, Hon. Frederick van Pelt Bryan

presiding, and a sentence of three months imprisonment,

after a trial without a jury, for knowingly destroying and

mutilating his selective service notice of classification in vio.

lation of Section 462(b)(3) of the Universal Military

Training and Service Act of 1948, as amended, 50 App.

U.S.C. Section 462(b) (3).

Petitioner was indicted on May 25, 1966 (5a),° tried

on January 17, 1969, convicted on March 13, 1969, see

297 F. Supp. 339 (PA 3), and sentenced on April 28, 1969,

All of the pertinent facts were stipulated to by the

defendant (2la-26a). After registering with an Indiana

local board on November 7, 1956, he was classified LA,

and on January 14, 1959, he was reclassified I-O as a con-

seientious objector (22a). He later refused to report for

civilian alternative service and served a year in prison

‘from June 1962 to June 1963. On March 24, 1966, while

he was a full-time employee of the Committee for Non-

jdent Action (CNVA), a pacifist organization, he burned

~ dur" ate Notice of Classification in the offices of the

CNVA, 5 Beekman Street, New York City (26a), at a

heavily attended press conference called for that purpose

(37a).

* Numbers in parentheses followed by the letter “a” refer to

page numbers of petitioner’s appendix in the Court of Appeals,

a@ certified copy of which is being filed as part of the record in

the court to which certiorari is addressed, pursuant to Rule 21(1)

of the Rules of this Court.

All of the essential facts being admitted, petitioner’s

case in the trial court, on appeal to the Second Circuit,

and on this petition to this Court, essentially rests on

four defenses :

1) Condonation

On June 4, 1966, petitioner wrote his local board re-

questing a duplicate classification so that he could burn

it“in sympathy with other people who have done so” (87a).

A duplicate notice was promptly mailed to him on January

13, 1966 (24a), unaccompanied by any warning of the

legal consequence of burning the card. The local board

did not solicit the advice of Indiana State Headquarters

concerning the request for a duplicate (29a). Nor did the

local board conduct any investigation of the facts. Nor

was petitioner invited to meet with the local board or

advised by any representative of Selective Service that

he would be in violation of law if he burned his card (72a).

Specifically, the local board did not mail to the registrant

the official form prescribed by Section 1623.7 of the Se-

lective Service Regulations, for utilization where a reg-

istrant requests a duplicate card but “does not present

sufficient information concerning the basis for the re-

quest....” Supra, p. 6.

All of this was in sharp contrast to petitioner’s experi-

ence some five years earlier when he sought to return

both his notice of classification and his registration cer-

tificate to his local board “as part of a protest against

the preparations for war” (22a). On that earlier occa-

sion, both petitioner’s local board and Indiana State Head-

quarters were actively involved in exchanges of communi-

cation concerning this novel act (27a-28a, 82a-85a),

culminating with specific advice to petitioner to carry his

card so as not to be in violation of the law (84a).

2) Absence of Effective Selective Service Liability

On March 24, 1966, petitioner had already been clasgj.

fied as a conscientious objector for a substantial Period

of time, and he was in the fifth selection group in the order

of call prescribed by Selective Service Regulations, Sec

32 CFR Section 1631.7 (a) (1)-(5). [The regulation is set

out at page 7, supra.]

The Government stipulated that from the time peti.

tioner was placed in selection group 5 on August 12, 1964,

up until the date of the stipulation, January 17, 1969,

“national draft quotas have been such that no person in

selection group 5 has been ordered for induction or alter-

native civilian service” (24a, 26a). See 297 F. Supp. at 342,

The Selective Service Regulations provide that no regis.

trant in selection group 5 (persons over the age of 26)

may be ordered to report for induction or for alternative

civilian service until all registrants in the first through

fourth selection groups (consisting principally of regis.

trants under the age of 26) have been reached in their

preper order and duly called.

3) Access to Significant Audience Through Mass Media

Before Kiger burned his card, the Committee for Non-

Violent Action, by which he was employed, sent out a press

release to the major media announcing the event. On March

24, 1966, approximately 30 to 35 representatives of radio,

the three major television networks and the press crowded

into the Committee offices (38a, 42a, 46a). A news story

with a photograph of the burning appeared on page 5 of

the New York Post (91a) and on page 3 of the New York

Times (92a-93a). A news story also appeared in the New

York Herald Tribune (94a). The combined circulation of

those newspapers at that period was approximately

1,450,000.°

Both WCBS-TV and WNBC-TV showed films of the

draft card burning on their 6 P.M. and 11 P.M. news pro-

grams. Kach station has an audience of between 600,000

and 800,000 for the earlier program and approximately

900,000 for the later one. Assuming different audiences for

each show, as many as 3,000,000 viewers may have seen the

films of the event on those stations. The third New York

network station could not confirm through its records

whether or nct the event had been covered (96a-97a).

In addition, radio stations WCBS and WMCA broadcast

reports of the burning. Their combined audiences are in

excess of 220,000. Radio stations WABC, WNEW and

WINS were unable to determine whether or not they cov-

ered the event (96a-97a).

Finally, the wire services of both United Press Inter-

national and Associated Press carried reports of the burn-

ing to their respective outlets, which aggregate approxi-

mately 1950 newspapers and 5200 radio and television

stations (96a-97a).

* According to the Audit Bureau of Circulations, the New York

Times and the New York Post had average daily circulations of

767,239 and 380,764, respectively, for the six month period end-

ing September 1966. 1967 Ayer Directory of Newspapers and

Periodicals (Bray ed., 1967). The New York Herald Tribune

had an average daily circulation of 303,178 for the six month

period ending September 1965. 1966 Ayer Directory of News-

papers and Periodicals (McAllister ed., 1966).

Thus Kiger brought his protest against the war to an

‘audience across the country that easily numbered in th

millions. Despite having participated in weekly peace

vigils in Times Square for over four years prior to burning

his card, Kiger had never reached an aggregate audience

of more than a few thousand on any one entire day (79a).

Nor had any previous press conference called by the Com.

mittee for Non-Violent Action received comparable media

coverage (48a).

In March 1966, when he burned his card, Kiger, as an

employee of the Committee for Non-Violent Action, received

a salary of less than fifty dollars a week (75a), and his total

assets consisted of less than $1400 (75a). One minute of

time on a network news program costs between $1500 and

$3000. A page in the daily edition of the New York Times

and the New York Post cost approximately $7,200 and

$2,640 respectively (95a). The Committee did not have

financial resources to publicize its views through the mass

media and ultimately went out of existence in part because

of its financial problems (49a).

4) Nolo Contendere

Prior to trial, petitioner moved for leave to enter a plea

of nolo contendere under Rule 11 of the Federal Rules of

Criminal Procedure. The application for the plea was sup-

ported by a memorandum which stressed petitioner’s non-

violent background, his commitment to pacifism, and the

open and peaceful nature of his act. It was rejected by the

trial judge who stated that he was of the view that “this

is not an appropriate case for the acceptance of a nolo

contendere plea” and that it was denied “in the exercise

of the court’s discretion,” and without any further state-

ment of reasons (21a).

Reasons for Granting the Writ

Certiorari should be granted because the Court of Ap-

s has decided important questions of Federal law which

should be settled by this Court.

inasmuch as the duplicate notice of classification which

petitioner burned was sent to him by his local board,

in violation of Selective Service regulations, after he re-

quested it for the stated purpose of symbolic burning,

the action of the board constituted implied condonation,

thus rendering his conviction in violation of due proc-

ess under the principles of the Raley-Cox doctrine.

This case involves an important and unsettled question

of criminal due process, quite apart from consideration of

the constitutional applicability of the draft card burning

prohibition to petitioner’s actions. It is axiomatic that

“the individual must have fair warning of what conduct

the government intends to punish.” Note, 78 YaLe L.J.

1046, 1048 (1969). See Cole v. Arkansas, 333 U.S. 196

(1948) ; DeJonge v. Oregon, 299 U.S. 353, 362 (1937). In

Raley v. Ohio, 360 U.S. 423 (1959), and Cox v. Louisiana,

379 U.S. 559 (1965), this Court established the principle

that when one acts in a legally ambiguous situaticn, with

the seeming tolerance or condonation of governmental au-

thority, the due process clause protects him frora being

prosecuted for such action.”

1See People v. Markowitz, 18 N.Y.2d 953, 277 N.Y.S.2d 149

(1966) (conviction for unlicensed peddling reversed as violation

of due process, citing Cor, where defendant alleged that he was

Petitioner urges that this case comes within the Raley.

Coz principle since (1) at a time that the constituti

of the newly-enacted statute was being subjected to serious

question,’ (2) when petitioner was a duly classified cog.

scientious objector, (3) and concededly beyond the age of

effective Selective Service liability, (4) he asked his loca)

board to send him a new draft card for the stated purpose

of burning it as a symbolic protest against the war, (5)

the local board immediately obliged him without

or warning, (6) notwithstanding the fact that a sisnilar

gesture which he attempted to make some years previously

resulted in a specific warning by the Board of the legal

consequences of non-possession.

Petitioner’s argument is strongly buttressed by the fact

that the local board did not comply with Selective Service

Regulations in issuing him a new card without making the

required investigation.

Under $1623.7 of the Selective Service Regulations a

duplicate may be issued upon “the presentation of proof

satisfactory to the local board” that the document “has

been lost, destroyed, mislaid or stolen.” The local board

is specifically enjoined not to issue a duplicate in response

to a letter “which does not present sufficient information

told license was unnecessary); see also People v. Donovan, 53

Mise.2d 409, 279 N.Y.S.2d 404 (1967). Cf. State v. White, 237

Mo. 108, 140 S.W. 896 ( 1911) (reversing conviction of felon who

i to vote in violation of disqualification statute where.

election officials knowing his status allowed him io vote).

* Petitioner burned his card on March 24, 1966. The first ap-

pellate court decision upholding constitutionality was United States

v. Miller, 367 F.2d 72 (2d Cir.) decided on Oct. 13, 1966. On

April 10, 1967, the First Cireuit held the statute unconstitutional.

O’Brien v. United States, 376 F.2d 538, rev'd 391 U.S. 367 (1968).

BLEED THROUGH POOR COPY

concerning the basis for the request....” In such event,

Section 1623.7 directs the local board to mail to the regis-

trant an official selective service form designated “Request

for Duplicate Registration Certificate or Notice of Classi-

feation (SSS Form No. 6),” and to instruct him that the

form must be completed and returned to the local board.’

Thus, the statement by the trial court that the local board,

in sending the duplicate card upon request, “only did what

it was required to do... ,” 297 F. Supp. at 342 (PA 8),

is incorrect since the local board plainly did not do what

it was required to do. The failure to follow regulations is

a further violation of petitioner’s right to due process.

Vitarelli v. Seaton, 359 U.S. 535 (1959) ; Service v. Dulles,

354 U.S. 363 (1957); see Miller v. United States, 388 F.2d

973 (9th Cir. 1967); Murray v. Blatchford, —— F. Supp.

—, 38 U.S.L.W. 2381 (D.R.I. Dee. 24, 1969).

The trial court attempted to distinguish Raley and Coz

by a finding that “it is plain from the record in this case

that Kiger was fully aware at the time he burned his draft

ecard of the amended statute making such an act a

crime....” 297 F. Supp. at 342 (PA 8). But there is no

requirement of ignorance of the existence of the penal

+A registrant, particularly one classified by his local board as a

conscientious objector, who addressed such a letter to his board,

might have reasonably expected that his letter would lead to some

dialogue with the board. Indeed, one might expect that the nor-

mal reaction of a board concerned with the welfare of a registrant

would be to attempt to discuss the problem with him and to dis-

suade him from any rash action. Cf. Stoppelman v. United States,

406 F.2d 127, 130 (1st Cir. 1969). (“Some thoughtful probing

of appellant’s views might either have caused appellant to change

them or to change his intended course of conduct... . . ”") But

petitioner received neither a warning against infraction, nor an

invitation to appear before the Board, nor even a letter urging

him to think twice before acting. All that he got was a draft

card suitable for burning.

COPY BOUND CLOSE IN CENTER

statute as a precondition for the application of the

Coz doctrine. The constitutional right of a person

with a crime to clear and unequivocal notice that his act

is criminal may not be excused by “the speculation of the

court below” that he “might have behaved the same way

regardless of what the [Local Board] told (him].” Raley

v. Ohio, 360 U.S. at 439.

Furthermore, although it was indeed clear that peti.

tioner was aware of the newly-enacted statute, it is not at

all clear that he was aware that it applied to him. In the

light of his age and classification, his prior correspondence

with the Board, and the uncertain status of the new law,

he may have not unreasonably concluded that the Board’s

action signified that the law did not apply to him. A person

is not guilty of a “wilful” crime if he acts in the honest

but mistaken belief that his actions are lawful. United

States v. Murdock, 290 U.S. 309 (1933).

This Court in Raley described the constitutionally ob.

jectionable government activity as “an indefensible sort of

entrapment ...” 360 U.S. at 426. It is not classical ep.

trapment since there is no element of secrecy on the part

of the government. Cf. Sorrells y. United States, 287 US,

435 (1932). But the essence of the wrongful action here,

as in Raley and Coz, is simply that the consequence of

governmental! action was “the leading of a person to com.

mitting a violation of the law.” United States v. Sansone,

385 F.2d 247, 251 (7th Cir. 1967).

In civil cases the government can be equitably estopped

where it is aware of illegal practices but remains silent,

and the party dealing with the Government “relied to its

detriment on the Government's silence.” United States y.

Hanna Nickel Smelting Company, 253 F. Supp. 784, 793

(D. Ore. 1966) aff'd 400 F.2d 944 (9th Cir. 1968).* In this

case petitioner did not have to try to divine the meaning

of governmental silence, as would have been the case, for

example, if he asked a specific question and received no

answer. Here there was an immediate answer, in the form

of a draft card virtually by return mail, sent to him with

the full imprimatur of the government.

When a citizen asks a govermental agency if a proposed

course of action is legal, perhaps the agency has no respon-

sibility to respond. But if it does respond, and its response

appears to legitimate illegal conduct, then the due process

cause forbids prosecution. See People v. Markowitz, 18

N.Y.2d 953, 277 N.Y.S.2d 149 (1966). If the citizen re-

quests of the governmental agency the means with which

to perform the questionable act, and the agency unhesi-

tatingly obliges him without warning, the same principle

of due process should apply a fortiori. Assume the case

of a licensed physician authorized to dispense narcotic

drugs upon issuance of his annual state license therefor.

The physician advises the state authorities at the time he

applies for his annual renewal that he disagrees with the

statutory restrictions and intends, if his license is renewed,

to dispense narcotics whenever he believes it professionally

appropriate. Surely there is some obligation on the part

of the authorities to either withhold the license, or to issue

a warning, or to investigate. To simply issue the license,

and then to prosecute, is offensive to the elemental notion

of fairness which the due process clause seeks to safeguard.

‘For a well reasoned argument that Raley and Coz indicate the

emergence of a doctrine of criminal estoppel, see Note, 78 YALE

LJ. 1046 (1969). See also Note, 40 Tu. L. Rev. 185 (1965).

This court should grant certiorari so that it can be de.

cided whether a citizen who deals with & governmental

agency concerning action which may be criminal always

does so at his peril, or whether there are any circumstances

where ambiguous governmental action will free him of the

peril. “We should not derive criminal outlawry from some

ambiguous implication.” United States v. Universal 0.1.8,

Credit Corp., 344 U.S. 218, 222 (1952) ; United States y.

Toussie, 38 U.S.L.W. 4181, 4184 (U.S. Mar. 2, 1970).

Il.

The decision of this Court in United States v. O’Brien

merits reconsideration in the light of the substantial and

serious criticism which has been directed at its constitu.

tional soundness, as well as the importance of establish.

ing more definitive guidelines to deal with cases involy.

ing symbolic expression.

In United States v. O’Brien, 391 U.S. 367 (1968), this

Court rejected arguments that the hurried 1965 amend-

ment, which made it a felony to “wilfully destroy” o;

“wilfully mutilate” one’s selective service certificate,

amounted to an abridgement of free speech in violation of

the First Amendment. The Court held that, as applied to

O’Brien, the punishment for draft card burning was not

without a valid legislative purpose, 391 U.S. at 378-381.

O’Brien’s arguments that the statute abridged a long.

established constitutional right to peaceful symbolic speech

were rejected, 391 U.S. at 376, 378, 382, as were O’Brien’s

arguments that the statute must be held unconstitutional

because of the clearly expressed Congressional Purpose to

punish draft card burners for their dissenting beliefs and

symbolic acts, 391 U.S. at 382-386.

ree er eee ees Fa Et eee la a mt oo Eo Pl on to

Rarely has a Supreme Court decision met with such a

gniversal reaction of disapproval as did the O’Brien case.

Virtually every commentator, including some of great dis-

tinction, who has had occasion to note the decision, has

criticized its constitutional soundness on a number of

grounds. See Emerson, Freedom of Expression in War-

time, 116 U. Pa. L. Rev. 975, 997-1002 (1968); Henkin,

Foreword: On Drawing Lines, The Supreme Court—

1967 Term, 82 Harv. L. Rev. 63, 76-82 (1968); Alfange,

Free Speech and Symbolic Conduct: The Draft-Card

Burning Case, 1968 Tue Supreme Court Review 1 (1968) ;

Katz, When a Nation Is at War—The Supreme Court in

a Post-Utopian Era, 23 Rutcers L. Rev. 1, 19-32 (1968) ;

Rosen, Civil Disobedience and Other Such Techniques:

Law Making Through Law Breaking, 37 Gxo. Wass. L.

Rev. 435, 441, 447 (1969); Velvel, Protecting Civil Dis-

obedience Under the First Amendment, 37 Gxo. Wasu. L.

Rev. 464 (1969); Note, Symbolic Conduct, 68 CoLtum. L.

Rev. 1091, 1098-1105 (1968); Note, 37 Geo. Wasu. L. Rev.

596 (1969) ; Note, 14 How. L. J. 186 (1968) ; Note, 20 Syr.

L. Rev. 98 (1968); Note, 6 San Dreco L. Rev. 81 (1969).

See, also, Velvel, Freedom of Speech and the Draft-Card

Burning Cases, 16 Kans. L. Rev. 149 (1968); Rachlin,

Draft Cards and Burning the Constitution, 32 Bruyn. L.

Rev. 334 (1966); but ef. Forkosch, Draft Card Burning—

Effectuation and Constitutionality of the 1965 Amendment,

39 Bxiyn. L. Rev. 303 (1966); Note, 3 Portia L. J. 52

(1967).

Six Supreme Court justices joined in the majority de-

cision in O’Brien. Mr. Justice Harlan concurred in a sepa-

rate opinion, 391 U.S. at 388. Mr. Justice Douglas dis-

sented on the grounds that the Court should consider the

“20

constitutionality of peacetime conscription, 391 US. at

389.5 Mr. Justice Marshall did not participate, 391 Us

at 386.°

* Last term, in Brandenburg v. Ohio, 395 U.S. 444 (1969), this

Court unanimously held unconstitutional the Ohio criminal syp.

dicalism law, thereby expressly overruli Whitney v. California,

274 U.S. 357 (1927). Mr. Justice Douglas, in his concurring opin.

ion in Brandenburg, argued that the same free speech doctrine

as that which the Court applied to invalidate the Ohio criming]

syndicalism law should have led to a similar decision of uncon.

stitutionality in O’Brien. Mr. Justice Douglas wrote at 395 US.

450, 454-456:

“Action is often a method of expression and within the

protection of the First Amendment.

“Suppose one tears up his own copy of the Constitution in

eloquent protest to a decision of this Court. May he be

indicted?

“Suppose one rips his own Bible to shreds to celebrate his

departure from one ‘faith’ and his embrace of atheism. May

he be indicted ?

“Last Term the Court held in United States v. O’Brien, 391

US. 367, 382, that a registrant under Selective Service who

burned his draft card in protest of the war in Vietnam could

be prosecuted. The First Amendment was tendered as a de-

fense and rejected, the Court saying:

‘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 to insure the continuing availability

of issued certificates serves a legitimate and substantial pur.

pose in the system’s administration.’ 391 US., at 377-378,

“But O’Brien was not prosecuted for not having his draft

ecard available when asked for by a federal agent. He was

indicted, tried, and convicted for burning the card. And this

Court’s affirmance of that conviction was not, with all respect,

consistent with the First Amendment.

“The act of praying often involves bod posture and move-

ment as well as utterances. It is nonetheless protected by the

Free Exercise Clause. Picketing, as we have said on numerous

occasions, is ‘free speech plus.’ See Bakery Drivers Local v.

Wohl, 315 U.S. 769. 775 (Dovar As, J., concurring) ; Giboney

v. Empire Storage Co., 336 U.S. 490, 501; Hughes v. Superior

Court, 339 U.S. 460, 465; Labor Board v. Fruit Packers, 377

U.S. 58, 77 (Buack, J., concurring), and 377 U.S., at 93

me eer FELIS SA teed ta lo on) oo ee ol ot > Od

Nothing short of a review of the entire corpus of schol-

arly writings critical of O’Brien can adequately picture the

many grounds for concern with its premises, reasoning,

holding, and implications. Included are the court’s unper-

suasive citation of precedent;’ the inadequate definition

(Har.an, J., dissenting) ; Cox v. Louisiana, 379 U.S. 559,

578 (opinion of BLACK, J.) ; Food Employees v. Logan Plaza,

391 U.S. 308, 326 (Dova.as, J., concurring). That means

that it ean be regulated when it comes to the ‘plus’ or ‘action’

side of the protest. It can be regulated as to the number of

pickets and the place and hours (see Cox v. Louisiana, supra),

because traffic and other community problems would otherwise

suffer.

“But none of these considerations are implicated in the

symbolic protest of the Vietnam war in the burning of a

draft card.”

‘Mr. Justice Marshall’s majority opinion in Amalgamated Food

Employees Union, Local 590 v. Logan Valley Plaza, 391 U.S. 308

(1968), decided one week prior to O’Brien, expresses the “speech-

nonspeech” relationship in terms much more sympathetic to the

free speech interest than the majority opinion in O’Brien:

“(NJ]o case decided by this Court can be found to support the

proposition that the nonspeech aspects of peaceful picketing

are so great as to render the provisions of the First Amend-

ment inapplicable to it altogether.

“As we observed earlier, the mere fact that speech is accom-

panied by conduct does not mean that the speech can be

suppressed under the guise of prohibiting the conduct... .

[T]his Court stated many — ago, ‘[O]ne is not to have

the exercise of his liberty of expression in appropriate places

abridged on the plea that it may be exercised in some other

place.’ Schneider v. State, 308 US. 147, 163... .” 391 US.

at 314, 323-324. See Prof. Henkin’s comment on this incon-

sistency at 82 Harv. L. Rev. 63, 79, n. 53.

' Referring to this Court’s citation in O’Brien, 391 U.S. at 376-

377, of its prior decisions in NAACP v. Button, 371 U.S. 415, 438

(1963) ; Sherbert v. Verner, 374 U.S. 398, 403 (1963) ; NAACP v.

Alabama ez rel. Patterson, 357 U.S. 449, 464 (1958); Bates v.

little Rock, 361 U.S. 516, 524 (1960); and Thomas v. Collins,

323 U.S. 516, 530 (1945), as distinguishable from O’Brien, Prof.

Henkin observes: “The cases cited in O’Brien do not explain these

distinctions for they are all cases that refused to give effect to

and application of the First Amendment balancing test!

the failure to analyze the relationship between the speech

and the conduct components of draft-card burning and to

perceive that the predominant element is expression not

action; the corresponding failure to recognize that the

them.” 82 Harv. L. Rev. at 77. Indeed, all five of the cited prece-

dents uphold the free expression interest over the asserted govern-

menial interest, and the O’Brien opinion does not explain how

these precedents lead the Court to a different result.

* Prof. Emerson criticizes the Court for balancing “the general

interest in national security against the interest in freedom of

expression,” rather than “the government’s interest in preventing

non-possession by burning (not non-possession in general) as against

freedom of expression.” 116 U. Pa. L. REv. at 998, n. 73. “This

degree of protection for expression falls far short of even that

afforded by the balancing test.” Id. at 1000. Accord: “[I]n spite

of a relatively unimportant government interest and a substantial

speech interest, the Court found the 1965 amendment valid. To

do so, it in effect ignored the balancing process that has long been

the controlling first amendment test.” Note, 37 Gzo. Was. L. Rev.

at 603. Prof. Alfange writes: “If there were no competing in-

terest against which it was to be measured, surely a slight govern-

ment interest would be enough to justify regulation or prohibition

of the conduct. Yet the absence of an attempt at comparison in

the Court’s opinion is striking. ... [R]esolution of the question

must turn on a comparison, or balancing, of the competing interests

—and this is precisely what the Supreme Court avoided.” 1968

THE SupreME Court Review at 23, 25-26.

*“Conduct and speech are thus treated as discrete and entirely

separable entities. Such a conceptual division may facilitate rea-

soning, but it fails altogether to correspond with reality. Moreover,

it fails to square with several decisions of the Court that have

conceded the expressive quality of certain forms of symbolic con-

duct ....” Alfange, supra, 1968 THe SupREME Court REVIEW at

24. “The burning of a draft card is, of course, conduct that involves

both expression and action. Yet it seems quite clear that the pre-

dominant element in such conduct is expression (opposition to the

draft) rather than action (destruction of a piece of cardboard).

The registrant is not concerned with secret or inadvertent burning

of his draft card, involving no communication with other persons.

The main feature, for him, is the public nature of the burning,

through which he expresses to the community his ideas and feelings

about the war and the draft.” Emerson, supra, 116 U. Pa. L. Rev.

at 1000.

Dt Fem FLI Mii ris iDoOMMApD Cb Y

statute was primarily directed at the speech element, not

the conduct element ;*° the totally uncritical acceptance of

valid legislative purpose, notwithstanding the overwhelm-

ing impact of unanimously contrary legislative history ;" the

thorough insubstantiality, and almost fancifulness, of the

issatmaiiabiiale

10 Prof. Emerson points out: “Moreover, it is apparent that gov-

ernmental control was directed at the expression element of draft

card burning, not at the action element. The destraction of a

small bit of paper, the action element involved, is not normally

punished by five years in prison... . Certainly it would make

no sense for Congress to punish loss of possession by reason of

burning, rather than loss of possession generally. What Congress

did, in short, was simply to punish a form of expressing opposi-

tion to the draft; the effect of the amendment in improving the

operation of the draft system was trivial and superfluous.” 116

UJ. Pa. L. Rev. at 1000-1001. Prof. Alfange adds the following

analysis: “The prohibition against knowing destruction or mutila-

tion, however, is manifestly enforceable only against those who

destrov their cards in the presence of witnesses or those who con-

fess. Against others, scienter could not be proved. The law, in

practice, can thus have an effect only upon the handful of dis-

genters who destroy their cards publicly or who announce that they

have destroyed them. But if the reasons asserted by the govern-

ment as the basis for the law are correct, the government’s in-

terest goes far beyond the actions of the dissenters; it pertains

to all registrants. The fact that Congress chose to protect this

interest by employing a law that has practical application only

against draft-card burners, when, at the same time, no meaningful

steps were looked upon as necessary to insure preservation of

draft cards by the vast majority of individuals, is a persuasive

indication that the burden imposed by the amendment upon free-

dom of expression is not an important step in the protection of

the government interest. Since the constitutional validity of a law

such as this, which suppresses symbolic conduct, depends in large

part upon its importance for the protection of the interest it is

said to serve, the fact that it cannot effectively serve that interest

is cogent evidence of its unconstitutionality.” 1968 THE SUPREME

Court Review at 45.

11 See all of the critical commentary passim, but especially Prof.

Alfange’s detailed discussion of “Legislative Motives and the Con-

stitutionality of Statutes,” 1968 THE SUPREME Court Review at

97-98. The author of the Note at 37 Gro. Wasu. L. Rev. 596 (1969),

~24

_ legislative justifications catalogued by the Court;"* and the

wooden distinctions assumed between orthodox modes of

expression and symbolic speech, which failed to Perceive

the essential nature of the communication process."

discovered a portion of the legislative history which had not been

noted in the previous discussions of draft card burning:

“In explaining the purpose of the legislation to the full House

Armed Services Committee, the Committee’s Chief Counsel stated,

‘Now this is the answer, of course, to this attempted mass destrye.

tion of draft cards. These bums that are going around the country

burning draft cards while people are dying in Viet Nam have

brought about this type of action on the part of the chairman

[Hon. L. Mendel Rivers].’ He also stated, ‘If we used the words

- .. knowingly mutilates . . . it is easier to convict an individual

who puts his card into a fire purposely at a mass demonstrati

or destroys his draft card in the presence of others.’ House Armed

Services Comm., Full Comm. Consideration of H. R. 10306, 89th

Cong., Ist Sess., No. 23, at 3130 (1965).” 37 Gzo. Wasu. L. Rey.

596, 600, n. 34.

Prof. Alfange concludes that the Court “.. . coyly chose in

this case to accept the law uncritically on its face and to avoid

recognition of the manifest congressional purpose.” 1968 Tre

Supreme Court Review at 52.

*? See Prof. Velvel’s analysis at 37 Gro. Wasu. L. REV. at 469-472,

and Prof. Alfange’s analysis at 1968 Tue Sup. Cr. REv. at 42-44

(“... where a law is enacted with foreknowledge that it would

have the effect of suppressing a form of dissent, it would not be

unreasonable to demand that its utility be more than merely con-

jectural.” Id. at 42). See also Note, Symbolic Conduct, 68 Couvm.

L. Rev. 1091, 1102 (1968). It is hard to disagree with Prof.

Alfange’s conclusion that “this is a rationalization conceived after

the fact of enactment rather than a statement of the considera-

a underlying the amendment’s passage.” 1968 THE Sup. Cr.

Ev. at 27.

#8 See citations to Prof. Emerson’s article, supra, and see par-

ticularly the close analysis of free speech and language theo

by the author of the Note at 68 CoLum. L. Rev. 1091, including ref-

erences to McLuhan, id. at 1108; Butler (“Whenever two living

beings have conveyed and received ideas, there has been language,

whether looks or gestures or words spoken or written have been

the vehicle by means of which the ideas have travelled.” Id. at

1109) ; and Milton (“Whatever sung Be hear or see, sitting, walk-

ing, traveling, or conversing may be fitly called our book, and

is of the same effect that writings are.. |.” Id. at 1106).

re err 8S Fa EO ED rmaAarar eA revs

—

Petitioner respectfully urges that a consideration of the

virtually unanimous scholarly criticism of the O’Brien de-

cision in itself is sufficient justification for granting certi-

orari in this case.* Cases raising questions of symbolic

speech are coming to this Court with increasing frequency.

See Tinker v. Des Moines, 393 U.S. 503 (19€9) ; Street v.

New York, 394 U.S. 593 (1969) ; Cowgill v. California, ——

US. —, 24 L.ed.2d 590 (1970). Some of the Justices who

yoted with the O’Brien majority have intimated differing

views concerning the scope of the constitutional holding in

that case. Compare Mr. Justice Harlan, writing for the

Court in Street v. New York, supra, 394 U.S. at 594, with

Mr. Justice Fortas, dissenting, 394 U.S. at 599. In Cowgill

y. California, supra, Mr. Justice Harlan and Mr. Justice

Brennan, specifically observed that in O’Brien this Court

took “judicial notice of the symbolic significance of draft

card-burning which became a recognized way of protesting

the draft and American involvement in Vietnam,” 24 L.ed.

9d at 591. At the same time, in the apparent view of Jus-

tices Harlan and Brennan, there are limits to the O’Brien

holding, since “The Court has, as yet, not established a

test for determining at what point conduct becomes so in-

tertwined with expression that it becomes necessary to

weigh the State’s interest in proscribing conduct against

the constitutionally protected interest in freedom of ex-

pression.” 24 L.ed.2d at 590-591.

A grant of certiorari in this case would provide an op-

portunity to reconsider the O’Brien holding in the light of

the critical commentary, and to provide such further re-

4“Byven in a day when the law reviews are much cited but not

often heeded, it may still serve a purpose to hold up to the Court

aga that emphasizes its warts.” Henkin, supra, 82 Harv. L.

. at 63.

finements as may be necessary for the constitutionally

tolerable regulation of symbolic speech. This Court has

always had the view, Chief Justice Warren has stated,

“that in constitutional cases stare decisis is not absolute,

that constitutional questions are always open for examina.

tion... .” Lewis, A Talk With Warren on Crime, the

Court, the Country, The New York Times Magazine,

October 19, 1969, pp. 34, 128."

Il.

The statute may not be constitutionally applied to a

registrant who is beyond the age of any effective selec.

tive service liability.

In addition to reconsideration of O’Brien, a further rea.

son for granting certiorari is to determine if there is con.

stitutional power to punish a draft card-burner who is be-

yond the age of any effective selective service liability. The

government conceded and the trial court acknowledged that

petitioner, who was a classified conscientious objector past

the age of 26, had virtually no likelihood of being drafted.

297 F. Supp. at 342-343 (24a, PA 11). Yet the trial court

held that since “the Selective Service System was required

to keep track of him until he reached 35 . . . the purposes

served by the statute, as found in O’Brien, apply to

Kiger.” ** 297 F. Supp. at 343.

** For a careful study of the ninety times that this Court has

reversed itself between 1790 and 1959, see Ulmer, An Empirical

Analysts of Selected Aspects of Lawmaking of the United States

Supreme Court, 8 J. or Pus. L. 414, 418-423 ( 1959).

** An analysis of the four legislative justifications itemized in

the O’Brien opinion, 391 U.S. at 379, even without the critical

It is significant, therefore, that the O’Brien opinion con-

tains a passage which suggests that its holding may be of

limited application. After noting the existence of “constitu-

tional power of Congress to raise and support armies and

to make all laws necessary and proper to that end... <

391 U.S. at 377, the opinion then states:

“Pursuant to this power, Congress may establish a

system of registration for individuals. liable for train-

ing and service, and may require such individuals —

within reason to cooperate in the registration system.”

Ibid. (Emphasis added.)

This key sentence of the opinion appears to acknowledge

that notwithstanding the breadth of constitutional power

to raise and support armies, the power to register and to

classify does not reach individuals who are not liable for

training and service, and that, in any event, only regulations

which are “within reason” are constitutionally permissible.

Of course, the war power is not sacrosanct, and “cannot be

invoked as a talismanic incantation to support any exercise

of Congressional power that can be brought within its —

ambit.” United States v. Robel, 389 U.S. 258, 263 (1967).

See Galvan v. Press, 347 U.S. 522, 530 (1954) ; Youngstown

Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952); Ken-

nedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Wolff v.

Selective Service Local Board #16, 372 F.2d 817 (2d Cir.

1967).

commentary, see note 12, supra, makes it plain that whatever other

governmental purposes may be served = penalization of draft

eard burning, the statute in no way affects the ability of the

Selective Service System “to keep track of” any of its registrants,

whether age 18, age 26, or age 35.

It is one thing to hold David O’Brien (who was classified

I-A as available for immediate induction) to be constitu.

tionally subject to the statute. It is quite another thing,

however, to urge that the Congressional power to raise

armies goes so far as to allow the constitutionally permis.

sible punishment of persons no longer draft eligible whe

burn draft cards as an expression of symbolic dissest

Clearly, there is nothing in the Supreme Court's rationale

in the O’Brien case which would allow the prosecution of 5

draft card burner who is over the age of Zh Vet. the

statute, by its terms, applies to all persoms, eemmen as well

as men, of draft age, below draft age, amd beyeud denft age,

without any limitation.

Surely there are constitutional limits te the power te

regiment the citizenry by compelling all persons te re

tain in their permanent possession Selective Service cer.

tificates, income tax returns, identification earda, or any

other government-issued documents. Certiorari should be

granted so that this still open question of the seope of Fed-

eral power can be settled.

Iv.

Since the guarantee of free speech protects the right

to compete effectively in the marketplace of ideas—the

to communicate with a significant audience—and

since the facts of this case show that petitioner burned

his draft card because of his inability to otherwise have

access to the media, the conviction for burning his draft

card violated his rights under the First Amendment.

Incidental limitations on First Amendment activity are

justified where the state interest in the regulation is sub-

stantial. O’Brien v. United States, 391 U.S. 367 (1968).

However, Justice Harlan said in his concurring opinion :

“I wish to make explicit my understanding that this

passage does not foreclose consideration of First

Amendment claims in those rare instances when an

“Snecidental’ restriction upon expression, imposed by a

regulation which furthers an ‘important or substantial’

governmental interest and satisfied the Court’s other

criteria, in practice has the effect of entirely prevent-

ing a ‘speaker’ from reaching a significant audience

with whom he could not otherwise lawfully communi-

cate. 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.” Jd. at 388-89.

Thus, Justice Harlan invited a showing that a draft card

burner could not have reached a “significant audience” by

more conventional means of protest. Justice Harlan went

to the heart of what the First Amendment means. The

guarantee of freedom of speech insures not only the right

to speak one’s mind, but the right to “communicate,” the

right to reach a “significant audience.”

“Liberty of circulating is as essential . . . as liberty of

publishing; indeed, without the circulation, the pub.

lication would be of little value.” Ez parte Jackson,

96 U.S. 727, 733 (1877).

Justice Harlan perhaps properly assumed that O’Brien

could have conveyed his message to a significant audienee

in ways other than burning his draft card. No evidence

was offered to the contrary. But Peter Kiger offered that

evidence at trial. Despite the conclusory statement of the

trial court that he “had available lawful means to convey

his message,” 297 F. Supp. at 344, he could not have reached

the “significant audience” allowed by the broadcasting

media and guaranteed by the First Amendment without

resort to such dramatic form of protest. As Mr. Justice

Douglas has observed:

“Conventional methods of petitioning may be, and often

have been, shut off to large groups of our citizens.

Legislators may turn deaf ears ; formal complaints may

be routed endlessly through a bureaucratic maze;

courts may let the wheels of justice grind very slowly.

Those who do not control television and radio, those

who cannot afford to advertise in newspapers of‘ciren-

late elaborate pamphlets may have only a more lithited

type of access to public officials. Their methods should

not be condemned as tactics of obstruction and harass-

ment as long as the assembly and petition are peace-

able... .” Adderley v. Florida, 385 U.S. 39, 49-61

(1966) (Douglas, J., dissenting).

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4. Kiger Had Been Unable to Reach a Significant Audience

Through the Traditional Forms of Protest

"How people with “a novel point of view” are denied ac-

cess to a “significant audience,” and thus denied the pos-

sibility of having an impact on government policy, is

ilustrated by the situation of Peter Kiger, and revealed

in the record of this case.

A pacifist who had served a prison term because he could

not in conscience perform civilian alternative service, Kiger

had publicly and non-violently expressed his opposition to

the war in Vietnam on numerous occasions. He leafleted

and picketed constantly. He gave speeches and participated

in a weekly vigil in Times Square. His audience during

those times numbered in the hundreds or at the most a few

thousands (79a). The Administration, meanwhile, with its

regular access to the mass media, defended the war to

audiences of many millions. It is true that Peter Kiger was

free to express his views, to oppose the war openly and

vigorously, but in a marketplace enlarged by the media to

tens of millions, he reached only thousands. In no sense

did his speech effectively reach the full marketplace; in no

sense, therefore, were his views able to effectively compete

in the marketplace.

In an attempt to reach larger audiences, he and other

anti-war activists called press conferences to announce

their picketing and their vigils. But these demonstrations

were common and uneventful; they were not newsworthy

and, therefore, were not communicated through the media

to the marketplace. It was of course not necessary for the

Administration to do anything newsworthy to command

coverage. Its routine announcements about the war be-

came immediate headlines for millions to read.

Then Kiger and three colleagues sent out a short press

release stating that they would burn their draft cards in

the office of the Committee for Non-Violent Action. The

next day, representatives of every major news media

crowded into a small room to listen to Peter Kiger state

his moral opposition to the war and to watch him burn his

Notice of Classification. All the media gave the story

prominent coverage; the total audience was in the millions,

By means wholly peaceful, wholly non-violent, destructive

only of a small card belonging to him, Kiger had reached

Justice Harlan’s “significant audience.”

What had happened was—according to a communications

expert who testified—that Peter Kiger, who himself was

of no news interest, whose opinions by themselves could

command no media coverage, had done something novel and

dramatic, and thus newsworthy (63a, 64a). One reporter,

who was there and who also testified, said he would aot

have been assigned to cover the story had Kiger merely

announced that he would read a statement opposing the

war.”

B. Competition in the Marketplace of Ideas Depends on the

Effective Opportunity to Reach a Significant Audience

The problem posed by this case is not new. The Holmes-

ian analysis demanded not only that ideas be expressed

**“By the bizarre and unsettling nature of this technique the

demonstrator hopes to arrest and divert attention long enough to

compel the public to ponder his message. But attention-getting

devices so abound in the modern world that new ones soon become

tiresome. The dissenter must look for ever more unsettling assaults

on the mass mind if he is to have continuing impact.” Barron,

Access to the Press—A New First Amendment Right, 80 Harv.

L. Rev. 1641, 1647 (1967). See Barron, An Emerging Right of

Access to the Media?, 37 Gro. Wasu. L. Rev. 487, 491, n. 16 (1969).

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but that they compete. As a result, the Court has sought

to insure a competition in ideas by guaranteeing access to

the marketplace, or, in other words, by upholding the right

to publicly express one’s views. Thus, in Hague v. CIO, 307

U.S. 496, 515 (1939), this Court noted and upheld the

historic use of parks and streets “for purposes of assembly,

communicating thoughts between citizens, and discussing

public questions.” The concern there stated for a place

where ideas could have public exposure and compete for

acceptance was re-affirmed later that term when the Court

held that “the streets are natural and proper places for

the dissemination of information and opinion . . . 25

Schneider v. State, 308 U.S. 147, 163 (1939). But the Court

went one step further in that case, holding that the First

Amendment guaranteed not only a public place in which

to communicate but the right to use effective means of

communication. So pamphlets were protected because they

were “most effective instruments in the dissemination of

opinion.” Id. at 164. And several years later the right to

use loudspeakers was upheld because they are “indispen-

sable instruments of effective public speech. ... It is the

way people are reached.” Saia v. New York, 334 U.S. 558,

561 (1948).

Recently, this Court, in striking down an Alabama ban on

election day campaigning, observed that election day was

the only time when “last-minute” charges could be “effec-

tively answered.” Mills v. Alabama, 384 U.S. 214 (1966).

And in voiding an injunction against picketing in a private

shopping center, this Court held that the injunction would

preclude the picketers from communicating their message

to the store’s patrons. Amalgamated Food Employees

Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S.

308 (1968). See also, Wolin v. Port of New York Authority,

268 F. Supp. 855, 859, aff’d 392 F.2d 83 (2d Cir. 1968)

(public places secured for the exercise of First Amendment

rights “because they are usually locations where the ears of

large numbers of fellow citizens can most effectively be

reached”); Zucker v. Panitz, 299 F. Supp. 102, 105 (SD,

N.Y. 1969) (prohibition against placing anti-war advertise.

ment in school newspaper voided because “[it] is patently

unfair in the light of the free speech doctrine to close to the

students the forum which they deem effective to present

their ideas”).

Not just the right to speak, then, but the right to

effectively communicate, to have one’s views reach signifi-

cant numbers of people, to insure “free discussion of

governmental affairs,” Mills vy. Alabama, supra at 218, so

that “government may be responsive to the will of the

people,” Stromberg v. California, 283 U.S. 359, 368 (1931)

—these are the concerns of the First Amendment.

That is the theory, and that, we submit, is what Justice

Holmes envisioned. But just as the laissez-faire economic

theory which it reflected broke down when the market.

place of goods and services became dominated by concen.

trations of economic power, so the political theory must

now take into account the dominance of the marketplace

of ideas by the electronic media. Just as there was no

effective competition between the small retail grocer and

the great grocery chains, so there is no competition be-

tween ideas carried on leaflets and picket signs and ideas

transmitted to millions by radio and television.

Nowhere is this disparity of access so conspicuous as

with regard to opposition to the war in Vietnam. The

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effort to arouse opposition to the war has been waged by

individual citizens against a government policy which is

defended daily to millions by Administration spokesmen

inheadlines and news shows. The pictures of war appear in

newspapers and flash across television screens, and con-

dition the country to accept war as routine.

It was in the context of this massive, relentless, emotional

appeal from the Government for support of its war, an

appeal which used the visual images of war and the symbol

of the Presidency to persuade its nationwide audience, that

a dissenter took the most available and most innocuous

symbol of the war—a draft eard—and burned it before

the representatives of the national news media. For the

first time in his life, Peter Kiger’s views had reached a

significant audience—had competed in the same markct-

placee—as those of his Government.

C. The Ability to Reach a Significant Audience Depends on

Gaining Access to the Mass Media

If this purpose of the First Amendment—the competi-

tion of ideas—is to be achieved today, novel forms of pro-

test, which aliow the opportunity to reach a significant

audience through the mass media, must enjoy the same

protection earlier afforded speeches in public parks, leaf-

leting, loudspeakers, and picketing in shopping centers.

It was the recognition of this fact—that, in the electronic

age, an opportunity to reach the mass media audience is

a necessary concomitant of the First Amendment—which

underlay last term’s decision in Red Lion Broadcasting

Company v. Federal Communications Commission, 395 U.S.

367 (1969). Expressing concern for the legitimate claims

of those unable without governmental assistance to gain

access to broadcast frequencies for expression of their

views, the Court upheld the FCC “fairness doctrine,” which

requires a broadcaster to give fair coverage to both sides

of controversial issues and to give one subjected to a

personal attack an opportunity to reply. To the claim of

the broadcasters that the requirement abridged their First

Amendment rights, this Court held that

“the people as a whole retain their interest in free

speech by radio and their collective right to have the

medium function consistently with the ends and pur-

poses of the First Amendment. ... It is the purpose

of the First Amendment to preserve an uninhibited

marketplace of ideas in which truth will ultimately

prevail....” Id. at 390.

Thus, this Court re-affirmed its adherence to the “market-

place” concept, but brought it into the mass communications

era by acknowledging that “the people as a whole” must

have access to broadcasting facilities in order to effectively

compete in the marketplace.

The learning of the First Amendment cases through Red

Lion Broadcasting is that Kiger had a right protected by

the First Amendment to have his ideas compete effectively.

He had a right, absent a strong interest of the state to the

contrary, to reach a “significant audience.” As this Court

has said:

“The right of free speech is guaranteed every citizen

that he may reach the minds of willing listeners and to

do so there must be opportunity to win their attention.”

Kovacs v. Cooper, 336 U.S. 77, 87 (1949).

Thus, the law prohibiting draft card burning, far from

having an “incidental” effect on his First Amendment

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rights, as assumed by O’Brien, substantially deprived peti-

tioner of those rights. Under these circumstances the easy

assumption by the Court that the prohibition was justified

must be ‘re-examined. Quite simply, an interest of the state

which outweighs an incidental limitation on First Amend-

ment rights may well not outweigh what amounts to a total

deprivation of those rights. The traditional balancing test

employed by this Court requires no less.

The District Court abused its discretion in refusing to

accept a plea of nolo contendere.

Prior to trial, Kiger offered to enter a plea of nolo con-

tendere. Rule 11 of the Federal Rules of Criminal Proce-

dure requires the consent of the court before a defendant

may so plead. The court rejected the plea without ex-

planation (21a). Petitioner contends that a proffered plea

of nolo contendere may not be rejected arbitrarily. Under

the circumstances of this case, we urge that the trial court

abused its discretion in rejecting the plea.

The nolo plea does have legal and practical effects which

differ from a finding of guilty or a plea of guilty. These dif-

ferences are significant in this case. A nolo plea, unlike

a finding of guilt, may not be used to impeach the defen-

dant’s testimony in a subsequent civil or criminal action.

Mickler v. Fahs, 243 F.2d 515 (5th Cir. 1957); Piassick v.

United States, 253 F.2d 658 (5th Cir. 1958).* Of greater

moment, however, to petitioner (and to other young men

* This is obviously of great importance to petitioner whose life-

long pacifist acitvities have resulted in a number of court appear-

ances.

who find themselves in conscientious opposition to the war

and the draft), a nolo plea carries with it somewhat less of

the public obloquy and dishonor that accompanies a convie.

tion after trial or upon a guilty plea.

Federal courts have rarely articulated guidelines for de.

termining when a nolo plea should be accepted or rejected,

although the general proposition was advanced in United

States v. Jones, 119 F. Supp. 288, 290 (S.D. Calif. 1954),

that, “in the absence of some reason why a defendant should

not have the benefit of the plea, the Court will ordinarily

allow it to be entered.” Other courts have sought more

specific grounds for its acceptance, and have generally

looked to the character of the defendant and the nature of

the crime. See, e.g., United States v. Chin Doong Art,

193 F. Supp. 820, 822 (E.D.N.Y. 1961); United States y.

Engelhard-Hanovia, Inc., 252 F. Supp. 605 (S.D.N.Y.

1964) ; United States v. Standard Ultramarine and Color

Co., 137 F. Supp. 167 (S.D.N.Y. 1955).

In the light of such considerations, the record demon-

strates that Peter Kiger qualifies pre-eminently for the

acceptance of a nolo plea. His life has been a model of

constructive achievement and commitment to the ideals of

peace and non-violence. Raised as a Quaker, he applied

for and received from his local board status as a conscien-

tious objector and was ordered to report for civilian alter-

native services. Unable to reconcile compulsory service

with his conscientious objector beliefs, he refused to report,

pleaded guilty to the charges brought against him, and

served a year in prison at the Springfield, Missouri Medi-

cal Center for Federal Prisoners (22a). As a condition of

probation, he then worked for a year as an orderly in the

Henry County Hospital in New Castle, Indiana. Peter

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Kiger has since led a life that has continued his earlier com-

mitment, working for the past four years in the offices of two

pacifist organizations, the War Resisters League and the

Committee for Non-Violent Action. During that time, he

has been almost singularly pre-occupied with promoting

the cause of peace and non-violence (53a-54a). Without

exception, his activities in that regard have been wholly

non-violent.

The act which led to this conviction, the burning of his

draft card, was symbolic not only of his opposition to war,

but also of his commitment to principles of non-violent

protest.

Considerations such as deterrence may be properly re-

flected in a sentence, but should not weigh in the decision

to accept or reject a nolo plea. See, e.g., United States v.

Safeway Stores, 20 F.R.D. 451 (N.D. Tex. 1951); United

States v. Cigarette Merchandisers Association, 136 F. Supp.

212 (S.D.N.Y. 1955). The plea of nolo contendere is the

singularly appropriate mechanism for courts to recognize

that certain defendants come before them acknowledging

their legal guilt while maintaining their moral innocence.

When one views the kinds of crimes for which nolo pleas

have been accepted, crimes motivated by desire for money

and power and revenge, crimes committed by violence,

others with the knowledge that thousands of innocent per-

sons were being robbed, crimes, according to an annotation

at 89 A.L.R.2d 540, 560-62, which include arson, assault,

burglary, sale of narcotics, embezzlement, espionage, ex-

tortion, rape, kidnapping and murder—in such light the

nature of the crime of which Peter Kiger was accused

stands apart in proper perspective as a selfless act-mo-

tivated by conscience and principle.

Despite the absence of standards governing acceptance

or rejection of the plea, the trial court’s discretion wag

not unlimited. To reject it here constituted an abuse of

discretion. See N.L.R.B. v. Guernsey-Muskingum Electric

Co-Operative, Inc., 285 F.2d 8 (6th Cir. 1960).*

The record in this case is devoid of any justification for

rejecting the plea. This Court should grant review so as

to establish some limitation on the authority of lower

courts to reject pleas of nolo contendere.

CONCLUSION

The petition for a writ of certiorari should be granted,

Respectfully submitted,

Marvin M. Karparxin

1345 Avenue of the Americas

New York, New York 10019

Awan H. Levine

c/o New York Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

Attorneys for Petitioner

March, 1970

*® Although petitioner’s counsel have found no case in which a

court’s refusal to accept a nolo plea has been grounds for reversal,

the possibility was suggested in Mason v. United States, 250 F.2d

704, 706 (10th Cir. 1957).

APPENDIX

PAI

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Seconp Ciacuir

No. 436—September Term, 1969.

(Argued January 14, 1970 Decided January 26, 1970.)

Docket No. 33689

Unrrep States or AMERICA, }

Appellee,

—

Peter Niven Kicer,

Appellant.

Before:

Mepina, Waterman and Situ,

Circuit Judges.

Appellant was convicted below, United States District

Court for the Southern District of New York, Bryan, J.,

sitting without jury, of having violated 50 App. U.S.C.

§462(b)(3). Opinion below reported at 297 F. Supp. 339

(1969). Conviction affirmed.

Cuartes B. Uppixe, James D. Zirin, Paul B.

Galvani, Asst. United States Attorneys,

Robert M. Morgenthau, United States At-

torney, for Appellee.

PA2

Marvin M. Kanrpatkin, Alan H. Levine, New

York City, for Appellant.

Per Curiam:

We affirm the conviction below on the opinion below,

reported in 297 F. Supp. 339 (SDNY 1969) and do so upon

the authority binding upon this court, United States y.

O’Brien, 391 U.S. 367 (1968). And see United States ¥.

Miller, 367 F.2d 72 (2 Cir. 1966), cert. denied, 386 U.S. 911

(1967), rehearing denied, 392 U.S. 917 (1968). With

reference to the claim that the judge below abused his

discretion in declining to accept the proffered offer of a

plea of nolo contendere, we discover no reason to interfere

with this decision of the trial judge. By refusing to accept

the plea after the distribution and receipt of memoranda

relative thereto, the judge required the Government to

prove beyond a reasonable doubt each and every allegation

of the indictment.

PA3

Opinion of the United States District Court

for the Southern District of New York

No. 66 Cr. 452.

United States District Court

S. D. New York.

March 13, 1969.

Unirep States oF AMERICA,

—

Perer Niven Kicer.

Robert M. Morgenthau, U. 8. Atty., for the Southern

District of New York, for the United States. Charles B.

Updike, Johu R. Robinson, Asst. U. S. Attys., of counsel.

Marvin M. Karpatkin, Alan H. Levine, New York City,

for defendant.

Oprnion

Freperick van Pevt Bryan, District Judge:

Defendant Peter Niven Kiger was tried before me with-

out a jury on an indictment charging him with knowingly

destroying and mutilating his Selective Service Notice of

Classification certificate in violation of § 462(b) (3) of the

Universal Military Training and Service Act of 1948, as

PA4

amended, 50 App.U.S.C. § 462(b) (3). At the conclusion

of the trial, decision was reserved. This section of the Uni-

versal Military Training and Service Act of 1948, as

amended in 1965, provides that a crime is committed by

“any person * * * who forges, alters, knowingly destroys,

knowingly mutilates, or in any manner changes” any cer.

tificate issued pursuant to the provisions of the Universal

Military Training and Service Act and the rules and regu-

lations and directions made pursuant thereto. A Notice of

Classification (SS Form 110) is such a certificate, 32 C.F.R.

§ 1623.4.

The evidence adduced at trial is for all practical pur-

poses undisputed. It establishes beyond a reasonable doubt

that on March 24, 1966, at the office of the Committee for

Non-violent Action, 5 Beekman Place, New York City,

Kiger burned his Notice of Classification’ and that he did

so knowingly and wilfully. The only questions in the case

relate to the defenses raised by Kiger.

Kiger urges that he cannot be found guilty of a violation

of §462(b), as charged, for three reasons. He contends

first, that there was “implied condonation” by his Local

Board of his conduct in thus burning his draft card which

would render a conviction for such conduct a denial of due

process; second, that he was ineligible for the draft when

he burned his card and therefore under the balancing test

of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673,

20 L.Ed.2d 672 (1968), interference with his First Amend.

ment rights of symbolic free speech is no longer justified ;

and third, that the act of burning his draft card was a

*The card burned by Kiger was a duplicate of his Notice of

Classification. It was the only duplicate card ever issued to him

and he no longer had his original Notice of Classificstion in his

possession.

PA5

necessary means of obtaining access to the mass media for

the expression of his views and was thus constitutionally

protected by the First Amendment.

In January, 1966, while Kiger was classified I-O (Con-

scientious Objector), he wrote a letter to his Local Board

in Indiana, reading in pertinent part as follows:

“Please send me a new classification card (I-Y I

believe). I do not know the whereabouts of the one

which you sent to my home in Dunreith, Ind. in 1963;

and I wish to burn one in sympathy with other people

who have done so.”

The Local Board then prepared a Notice of Classification

card labeled “Duplicate”, dated January 13, 1966, reflect-

ing Kiger’s current I-O classification rather than the I-Y

classification in which he apparently thought himself placed.

The duplicate card was mailed to Kiger on the same day

without any accompanying letter or other communication.

There was no further communication of any kind from the

Selective Service or any of its representatives with refer-

ence to Kiger’s letter or his statement that he intended to

burn his card up to March 24, 1966, when the burning of

the duplicate card took place.

Kiger contends that the action of the Local Board in

sending him the duplicate card without any comment on

his statement that he wished to burn it constituted “implied

condonation” of his conduct in burning the card, which is

tantamount to entrapment. He emphasizes the contrast

between this procedure and the action taken by the Local

Board in 1961, when he attempted to return his draft card

PA6

as “part of a protest against preparations for war by the

United States Government and other governments and

countries”, and stated he was willing to face up to the

penalties for such illegal acts. At that time the Board ad.

vised him that he must carry his registration and classifi.

cation certificates so as not to be in violation of law.

He also argues that, since the constitutionality of the

1965 amendment to the Universal Military Training and

Service Act, which made knowing destruction or mutila-

tion of a draft card a crime, had not yet been passed on

by any appellate court, the validity of the statute was then

“uncertain”. He urges that it follows from this that the

Local Board’s act of providing the duplicate card without

comment, knowing he wished to burn it, implied that it

thought his contemplated conduct was constitutionally pro.

tected.

Kiger relies principally on Raley v. Ohio, 360 U.S. 423,

79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), and Cox v. Louisiana,

379 U.S. 559, 85 S.Ct. 476, 18 L.Ed.2d 487 (1965), to sup-

port this defense. These cases are clearly distinguishable

and defendant’s reliance on them is misplaced.

In Raley, the defendants-appellants, claiming the privi-

lege against self-incrimination granted by the Ohio Consti-

tution, had refused to answer questions propounded by the

Ohio Un-American Activities Commission. They were in-

formed by the Commission that they had a right to rely

on the privilege. Nevertheless, they were convicted by the

state courts for contempt for refusing to answer the ques-

tions.

The Ohio Supreme Court affirmed the convictions. It

held that defendants were presumed to know the Ohio law

to the effect that the Ohio immunity statute deprived them

PAT

of the protection of the privilege against self-incrimination

and they therefore had committed an offense in refusing

to answer the questions as to which they had asserted the

privilege.

The United States Supreme Court reversed, holding that

the convictions violated the due process clause of the Four-

teenth Amendment. The Court stated, “After the Commis-

sion, speaking for the State, acted as it did,;-to sustain the

Ohio Supreme Court’s judgment would be to sanction an

indefensible sort of entrapment by the State—convicting a

citizen for exercising a privilege which the State had clearly

told him was available to him.” 360 U.S. at 425-426, 79 S.Ct.

at 1260. E

In Cox v. Louisiana, supra, the appellant was convicted

for demonstrating “near” the courthouse, in violation of a

state statute which proscribed such demonstrations when

done with the intent to interfere with, obstruct or impede

the administration of justice or to influence any judge,

juror, witness or court officer in the discharge of his duty.

The Supreme Court found that the term “near”, as used

in the statute was not self-explanatory, and that demon-

strators would rely on on-the-spot administrative deter-

mination as to how near the courthouse a demonstration

might take place. The police had given permission for the

demonstration to be held across the street from the court-

house and no suggestion or recommendation was made by

the police that it should be moved to a greater distance.

The Court deemed the situation in Cox to be analogous

to that in Raley, and the conviction was reversed. It held

that to sustain a conviction for demonstrating where police

officials said the demonstration could take place would be

“sn indefensible sort of entrapment by the State” and a

violation of due process.

PA8

In both Raley and Cox affirmative statements were made

to the defendants by responsible state or local officials to

the effect, in substance, that defendants had the right to

act as they did. The defendants acted in justifiable reliance

thereon. Nevertheless, despite such representations and

reliance, the defendants were prosecuted and convicted

for the very acts which were the subject of the represen-

tations. Thus, it could be said that they were misled into

believing that their course of conduct was not in violation

of law and that they would not be prosecuted therefor,

when in fact the contrary was true.?

The situation in the case at bar is quite different, No

representations of any kind were made by the Local Board

or the Selective Service System. The Local Board only

did what it was required to do when it sent the duplicate

card to Kiger.* It was under no obligation to answer the

statements made in his letter, and no implication that it

approved his proposed course of conduct can be drawn

from its failure to do so. Nor does the fact that on a

previous occasion it had advised him to carry his draft

card so as not to be in violation of law impose on it any

obligation to comment or admonish him on the later

occasion.

Moreover, it is amply plain from the record in this case

that Kiger was fully aware at the time he burned his draft

card of the amended statute making such an act a crime

?The defendant also refers to United States v. Sansone, 385

F.2d 247 (7th Cir. 1967). The decision in Sansone was grounded

upon the United States Customs Agents’ failure to follow the

requirements of a federal regulation. See also United States v.

Jones, 368 F.2d 795 (2d Cir. 1966). Sansone is of no relevance

here.

* See 32 C.F.R. § 1623.7.

PAY

and of the fact that his act was criminal. Indeed, he has

stressed that the criminality of what he did was one factor

ghich he hoped would help to publicize his protest.

[1] His defense is not aided by the fact that the con-

stitutionality of the amended statute had not been passed

upon by any appellate court at the time he burned his card.

Yo one can escape criminal liability for the. violation of a

statute on the ground that there may be doubts as to its

constitutionality. Here, of course, the statute was held

~ eonstitutional in United States v. O’Brien, supra.

[2] There is nothing here which savors of “implied

eondonation” or of anything which is tantamount to en-

trapment. The defense is devoid of merit.

[3] The second defense is based upon a distinction be-

tween Kiger’s draft status and that of the defendant in

the O’Brien case. O’Brien was under the age of 22 at the

time he burned his draft card, whereas Kiger was clas-

sified I-O, was over 26, and in selection group 5.‘ The

stipulation of facts in evidence in this case states:

“On August 12, 1964 Kiger was reclassified I-O and

placed in selection group 5. A new Notice of Classifi-

eation was mailed to Kiger on the same date. From

that date until the date of this stipulation [January 17,

1969], the national draft quotas have been such that

no person in selection group 5 has been ordered for

induction or alternative civilian service. In April, 1968,

Local Board 146, New Castle, Indiana [Kiger’s Local

*See 32 C.F.R. § 1631.7.

Mat TINS AEE ee

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REESE LE LITO PSNI

PA 10

Board] ordered one person from selection group 4 for

induction after which 9 persons were left in Selection

- group 4.”

From this Kiger argues that there was no reasonable

ground for anticipating that he would be called for indue.

tion and that the statute, if applied to him, would be

unconstitutional.

In United States v. O’Brien, supra, the Supreme Court

upheld the constitutionality of the draft card mutilation

amendment and rejected the argument that the burning of

a draft card was symbolic speech entitled to First Amend.

ment protections. The Court applied the following stand-

ard: “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 re.

striction on alleged First Amendment freedom is no greater

than is essential to the furtherance of that interest.” 391

U.S. at 377, 88 S.Ct. at 1679. It held that the certificate

served valid purposes of the Government, id. at 378-380,

88 S.Ct. 1673 and that Congress was therefore entitled to

make mutilation of the certificate a criminal offense.

Kiger’s position is that the difference in his draft status

from that of the O’Brien defendant requires a different

result under the balancing test and that the statute as

applied to him violates his First Amendment rights.

This contention is without merit. In the first place,

Kiger, having been classified as I-Y,° was liable for train-

° 32 C.F.R. § 1622.17. Class I-Y includes a registrant who would

be classified in Class I-A, I-A-O or I-O “but for the fact that

he is found under applicable physical, mental and moral standards

PAll

ing and service until he reached age 35.° Thereafter clas-

sified as I-O (Conscientious Objector), he was liable for

civilian service in any emergency up to that age. Even

though the probability of his being called may have been

slight, the Selective Service System was required to keep

track of him until he reached 35. Thus the purposes served

by the statute, as found in O’Brien, apply to Kiger.

Moreover, in United States v. Edelman, 384 F.2d 115

(2d Cir. 1967), cert. denied sub nom. Cornell v. United

States, 392 U.S. 904, 88 S.Ct. 2051, 20 L.Ed.2d 1363 (1968)

(a pre-O’Brien case), the Court of Appeals of this Circuit

rejected a similar argument. Prior to Edelman, the court

in United States v. Miller, 367 F.2d 72 (2d Cir. 1966),

cert. denied, 386 U.S. 911, 87 S.Ct. 855, 17 L.Ed.2d 787

(1967), reh. denied, 392 U.S. 917, 88 S.Ct. 2049, 20 L.Ed.2d

1378 (1968), had laid down the balancing test thereafter

followed in O’Brien.

In Miller the defendant was classified I-A. In Edelman

two of the defendants were classified 4-F and one was

1-0. In addition, one of the defendants was over the age

of 26. It was urged in Edelman that the balancing sheet

should produce a different result where the interest of the

Selective Service System in keeping track of a registrant

was less important than in the case of a registrant subject

to immediate call. In affirming the conviction, the Court

to be not currently qualified for service in the Armed Services

and who would be qualified for such service in time of war or

national emergency declared by the Congress.” The I-Y classi-

feation was made while defendant was serving a prison term

— for refusal to perform civilian service as a conscientious

jector.

aan 50 U.S.C.App. §456(h)(2) and 32 C.F.R. § 1622.1(a)

ii).

PA 12

of Appeals rejected this argument, holding that “the Selec.

tive Service System might be just as interested in knowing

who is not subject to call at a time of emergency as jt

would be in knowing who is subject to call.” United States

v. Edelman, 384 F.2d at 117.

The second defense is also without merit.

III

[4] The third defense is based on a novel theory of

First Amendment protections. According to the defendant,

his First Amendment rights include not only the right to

speak freely but also the right to use such means as may

be necessary to obtain access to the mass media of com-

munication for the ideas he wishes to express. He claims

that only by burning his draft card could he get his ideas

widely publicized by the mass media, and that therefore

the application of the statute to him would violate his

First Amendment rights.

The defendant and two of his associates burned or

mutilated their draft cards at a press conference which

they called and which was attended by numerous repre-

sentatives of the mass media of communication. The events

which occurred were reported fully in three New York

daily newspapers and on major TV and radio stations

and thus reached a large audience. One of the defendant's

major motivations in burning his draft card was to assure

that his protest reached a wide audience through the mass

communications media.

Defendant was permitted to bring out at trial that he

and his associates did not have sufficient funds available

for an advertising of their views in the mass media; that

he had been unable to obtain any substantial mass media

PA 13

coverage for his views though over a long period he had

distributed literature and made speeches against war; that

the newsworthiness of the draft card burning event lay in

large part in the fact that the participants were committing

a criminal act; that one of the main factors which deter-

mines newsworthiness on TV is dramatic impact on the

television audience, and that it was not the policy of CBS

News, at least, to accept on-the-spot advertising on con-

troversial subjects.

Defendant argues that these facts demonstrate that he

could not have obtained any substantial access to the mass

media without the drastic action of publicly burning his

draft card and that, therefore, his conduct is entitled to

First Amendment protection as “effective” free speech

and he cannot be held criminally liable therefor.

No cases are cited which support this novel theory,

and I know of none. Defendant, however, refers to the

brief concurring opinion of Mr. Justice Harlan in United

States v. O’Brien, supra. In agreeing with the principles

enunciated by the majority, Mr. Justice Harlan voiced

the following caveat:

“T 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 substan-

tial’ governmental interest and satisfies the Court’s

other criteria, in practice has the effect of entirely

preventing a ‘speaker’ from reaching a significant audi-

ence with whom he could not otherwise lawfully com-

municate. This is not such a case, since O’Brien

manifestly could have conveyed his message in many

PA14

ways other than by burning his draft card.” 39} 7

at 388-389, 88 S.Ct. at 1685 (concurring opinion),

I see nothing in Mr. Justice Harlan’s concurrence

supports defendant’s contention. Plainly, Mr. Jr

Harlan did not view his caveat as applying to O’Bri

himself, since he points out that “O’Brien manifestly coulj

have conveyed his message in many ways other than

burning his draft card.” Kiger, like O’Brien, had ay

lawful means to convey his message. Nevertheless, he chom

to do so by deliberately committing what he knew to bes

criminal act, and he must take the consequences, ;

Perhaps, as indicated in a recent Harvard Law Re ,

article,” the whole subject of access to the mass medi’

should be reexamined from the legislative, administratiys:,

and judicial viewpoints. But this is not to say that az z:

son is free to violate a criminal statute in order to get his”

views carried in the press and on the air. The standard

laid down in O’Brien are applicable to the case at bar,

and under those standards defendant’s conduct in this case

is not entitled to the protections of the First Amendment,” ‘

[5] It has been proven beyond a reasonable doubt that

violation of 50 App.U.S.C. §462(b) (3). I find defendant

guilty as charged. 4

*J. Barron “Access to the Press—A New First Amendment _

Right”, 80 Harv.L.Rev. 1641 (1967).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.