Shiffman v. Selective Service Board No. 5/Dissent Douglas

In these cases the Court of Appeals for the First and Second Circuits have held that § 10(b)(3) of the Military Selective Service Act, 50 U.S.C.App. § 460(b)(3), precludes preinduction judicial review of action taken against the two applicants by their local draft boards. They seek stays of induction into the Armed Forces until this Court has acted on certiorari petitions they will file, arguing that § 10(b)(3) is inapplicable or may not constitutionally be applied to require registrants either to forego the exercise of First Amendment rights or to vindicate them by defending a criminal prosecution.

Applicant Shiffman's Local Board declared him delinquent, canceled his II-A occupational deferment and reclassified him I-A after Shiffman had 'turned in' his draft classification card to the Government in an antiwar protest. He was then ordered to report for induction. Applicant Zigmond was classified I-A, but, having reached the age of 26, should ordinarily not have been called for induction until younger eligible registrants in the draft pool had been taken (see 32 CFR § 1631.7). Nevertheless, he received a delinquency notice followed by his induction notice soon after 'turning in' to the Government both his draft registration and classification certificates as a sign of protest.

I would grant the stays as I am unable to see any place in our constitutional system for Selective Service delinquency regulations employed to penalize or deter exercise of First Amendment rights.

The First Amendment means that whatever speech or protest a person makes, he may not, I submit, be taken by the neck by the Government and subjected to punishment, penalties, or inconveniences for making it.