Warning to Card Burners

If the Epton order did not lend itself to sure interpretation, court watchers last week were as certain as they ever get that in another case the court had clearly tipped its hand on the issue of draft-card burning. David O'Brien burned his card on the steps of the South Boston courthouse in 1966. His subsequent card-burning conviction was overturned by the U.S. Court of Appeals, First Circuit, which declared that the anti-card-burning law was an unconstitutional suppression of "symbolic speech." The Supreme Court agreed to take the case, and last week the justices heard oral arguments.

The very fact that they were reviewing the overturned conviction seemed a sign that the court's majority did not agree with the First Circuit's reasoning. In an earlier case, the court had allowed the Second Circuit's affirmation of the conviction of Card Burner David Miller to stand without interference. Any remaining hopes that O'Brien may have had must have waned when the justices began questioning his attorney.

The Difference. The defense contended that the anti-card-burning law was passed in "hysteria" by Congress only to suppress dissent; that the law was unnecessary, since it is already illegal to be without the card; that the cards are unnecessary, since all the information is on file with the Government anyway; and that the act of burning is an act of dissent, and as such is protected under the First Amendment's guarantee of freedom of speech.

The justices' questions immediately went to the heart of those arguments. Chief Justice Earl Warren asked O'Brien's attorney whether it would also be symbolic speech for a soldier in Viet Nam to "break his weapon in front of other soldiers?" As for the purpose of O'Brien's card, added Warren, "we have millions of people in this country floating around. What if he is found in Arizona and he refuses to give any information and the Government wants his card so that it can know his draft status?"

Justice Abe Fortas observed that "someone might think it was a form of dissent to throw a rock through a window of the White House." Justice John Harlan pointed out that, rather than being superfluous, the ban on burning or destroying the cards might well be seen as a legitimate way for Congress to ensure that registrants carry their cards at all times. Most definite of all was Justice Hugo Black, who has long been known as an uncompromising foe of restrictions on free speech. Card burning did not seem to him to be covered by the First Amendment guarantee. Said he to the defense attorney at the close of the one and one-half hour session: "I'm trying to emphasize to you the difference between conduct and speech."

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