Captain Howard Brett Levy, for Himself and for All Others Similarly Situated v. Honorable Howard F. Corcoran, United States District Judge

389 F.2d 929 Captain Howard Brett LEVY, for himself and for all others similarly situated, Petitioner, v. Honorable Howard F. CORCORAN, United States District Judge, Respondent. No. 20972. United States Court of Appeals District of Columbia Circuit. Argued May 9, 1967. Rehearing Denied June 7, 1967. Mr. Anthony G. Amsterdam, Philadelphia, Pa., with whom Messrs. Ralph J. Temple and Lawrence Speiser, Washington, D. C., were on the pleadings, for petitioner. Mr. Irwin Goldbloom, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Morton Hollander and Harland F. Leathers, Attys., Dept. of Justice, were on the pleadings, for respondent. Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Gil Zimmerman and Joseph M. Hannon, Asst. U. S. Attys., also entered appearances for respondent. Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges. ORDER PER CURIAM. — 1 — This cause came on for hearing on petitioner's petition for writ of mandamus and application for a stay and said petition and application were argued by counsel. Upon consideration whereof, it is — 2 — Ordered by the court that petitioner's aforesaid petition for writ of mandamus and application for a stay are denied. — 3 — BAZELON, Chief Judge, dissents from the foregoing order for the reasons stated in his dissenting opinion filed herewith. — 4 — TAMM, Circuit Judge. — 5 — I join in denying the application for the stay and the petition for writ of mandamus. I am of the view that this case is not properly before this court at the present time. I am of the opinion that the record discloses that our present petitioner has an adequate remedy at law. It is my view that he cannot at this time show imminent, irreparable injury. In the event of his conviction by a court martial, which at this time is problematical, there is then available to him, through court martial proceedings, review of those proceedings as specifically provided by law, including an ultimate appeal to the United States Court of Military Appeals, which is in itself a court entirely composed of civilians and which court within the last week has ruled that the principles of the Supreme Court's holding in the Miranda case are applicable to court martial proceedings. United States v. Tempia, 35 L.W. 2625 (April 25, 1967). — 6 — In addition, there is available to this petitioner, in due course and if he is convicted, the right of appeal to the civil courts through habeas corpus or other appropriate proceedings. — 7 — Against this background, I feel that at this time this court is without any jurisdiction in this matter. LEVENTHAL, Circuit Judge: — 8 — The refusal of the District Judge to take steps to convene a three-judge court seems to me sound for want of equity jurisdiction to restrain defendants from proceeding with a general court-martial scheduled to commence May 10, 1967. — 9 — The lack of equity jurisdiction to issue an injunction seems to me to inhere in the relationship of the civil courts and military tribunals, a relationship which looks to habeas corpus or kindred remedies as the technique by which the civil courts exercise such limited intervention as may be proper in cases taken before military tribunals. There may be want of equity jurisdiction for such reasons of governmental relationships even where there is no truly adequate remedy at law.1 But the conclusion is strengthened by our awareness that petitioner can preserve his constitutional defenses before the general court-martial, and in due course can present them to the Court of Military Appeals. That court has indicated its readiness to apply to men in the military service the protection of pertinent Supreme Court decisions based on constitutional grounds.2 — 10 — These considerations do not wholly answer petitioner's contention that the ability of the military to use the broad provisions of articles 133 and 134 of the Uniform Code of Military Justice (10 U.S.C. §§ 933, 934) to punish expressions of views within the continental United States forebodes such a "chilling effect" on speech that is protected by the Constitution as to call for the application of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). — 11 — The argument is not without logic. Where it breaks down, it seems to me, is where it runs into a judicial tradition which for more than 150 years has resisted all efforts to issue mandates intended to obviate exposure to court-martials or anticipate the results of proceedings before military tribunals.3 — 12 — It is not necessary to consider now whether this pattern of decisions is absolutely inviolate. It is formidable enough to obviate injunctive relief based on an expansion of the implications of Dombrowski. Nothwithstanding the language of Dombrowski, some individuals and groups will be denied injunctions and relegated to protecting their First Amendment freedoms by way of defense in other proceedings.4 Furthermore, I cannot accept petitioner's argument that a court should be as ready to enjoin the proceeding of a military tribunal as a Federal court to enjoin a state court proceeding. — 13 — Freedoms of speech and expression stand on the highest constitutional ground. And the fact of war does not obliterate freedom to dissent from the war. It may be assumed at least for discussion that although the balance between freedom and discipline is different for men in the military service than for civilians, at least some part of these freedoms is retained when civilians enter the military service. It may further be assumed that if these freedoms are unlawfully disregarded by military tribunals, there may in due course be recourse to the civil courts. But that does not compel this recourse to be by way of injunctive relief. — 14 — Whether the foregoing decision was reserved by Congress for three judges, rather than one, is not an easy question. It suffices to say that when the district judge is presented with a motion that is insubstantial insofar as it requests injunctive relief, the law does not contemplate a three-judge court. The district judge can preclude a three-judge court only when it is clear that injunctive relief is not available. I think this is such a case. BAZELON, Chief Judge, (dissenting): — 15 — Petitioner filed his papers at 5:00 p. m. yesterday evening. The Government filed its response at 11:00 a. m. today, and we heard this case at 11:45 a. m. Consequently, there has not been sufficient time for the consideration which the case deserves. However, as presently advised, I am compelled to dissent from the order issued today. — 16 — On September 10, 1965, Captain Howard Brett Levy wrote a letter to Sergeant Geoffrey Hancock, Jr. who was then stationed in Viet Nam. The letter strongly, and perhaps intemperately, criticized the foreign policy of the United States. Between February and December, 1966, Captain Levy made similar criticisms to various military personnel at his hospital base in South Carolina. On the basis of these two incidents, Levy's commanding officer charged him with violating Article 133 ("conduct unbecoming an officer and a gentleman") and Article 134 ("all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, * * *") of the Uniform Code of Military Justice. 10 U.S.C. §§ 933, 934 (1964). Levy was also charged with a violation of Article 90 (wilfully disobeying "a lawful command of his superior commissioned officer").1 10 U.S. C. § 890 (1964). The court martial, at which Levy faces the possibility of a life sentence, begins tomorrow. — 17 — Levy claims that Articles 133 and 134 are unconstitutionally vague and that Article 90 is unconstitutional as applied to him. On April 17, 1967, he moved in our District Court to have a three-judge District Court convened to decide the question and to issue an injunction against his pending court martial. On May 3, the District Court denied the motion. — 18 — Under Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), a three-judge District Court must hear and determine the case when (1) "the constitutional question raised is substantial" and (2) "the complaint at least formally alleges a basis for equitable relief." 370 U.S. at 715, 82 S.Ct. at 1296. — 19 — Recent cases in this Circuit have interpreted the first requirement to mean that the constitutional claim must be "patently frivolous" before one judge can dispose of it. Reed Enterprises v. Corcoran, 122 U.S.App.D.C. 387, 390, 354 F.2d 519, 522 (1965); Hobson v. Hansen, 252 F.Supp. 4, 7 (D.D.C.1966). Levy argues that Articles 133 and 134 are overly broad, and that their breadth impermissibly impinges upon First Amendment freedoms. A simple reading of the Articles shows that they are quite broad. Indeed, the Manual for Courts-Martial interprets Article 134 to include more than fifty different offenses ranging from abusing public animals to wearing an unauthorized insignia.2 Levy argues also that Article 90, though not unconstitutional on its face, is being applied as part of a scheme to punish him for exercising his First Amendment rights in the past and prevent him from exercising them in the future.3 For our present purposes we must take these allegations as true. And if they are true, the constitutionality of Article 90, as applied to Levy, is questionable. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). — 20 — The second requirement for convening a three-judge court is that the complaint allege a basis for equitable relief. Here Levy says that First Amendment rights will be "chilled" if his prosecution proceeds on the basis of two statutes which are unconstitutional on their face and one which is being applied in order to harass people who exercise their First Amendment rights.4 This chilling effect, Levy claims, constitutes irreparable injury under Dombrowski v. Pfister, supra. If Article 90, though constitutional on its face, is being applied to harass Levy, then that part of his case fits within the first ground for the Dombrowski decision. 380 U.S. at 490, 85 S.Ct. 1116. And if Articles 133 and 134 are unconstitutionally broad then that part of Levy's case fits within the second ground for the Dombrowski decision. 380 U.S. at 490-491, 85 S.Ct. 1116. — 21 — Of course all of this assumes that Dombrowski would be read to allow interference with military courts. The Dombrowski opinion itself suggests no reason why it should not be read in this way, though there may be other reasons why its scope would be limited. In any event, the applicability of Dombrowski to our case has never been decided and is not a frivolous issue.5 — 22 — Since neither the constitutional attack on the Articles nor the claim of irreparable injury is frivolous, this case should be heard and determined by a three-judge District Court. I think this much is abundantly clear. If Levy does have a right to have his case heard and determined by a three-judge District Court, then I think it is equally clear that the right must be made meaningful by a short stay of the court martial proceedings. Otherwise, with the beginning of the court martial tomorrow morning, the three-judge District Court would be left with a moot case. — 23 — These questions, whether the statutes are unconstitutional, whether there is irreparable injury, whether Dombrowski applies to military courts, are not easy, and they are not made any easier by the extreme time-pressure which confronts us. Moreover, they are not questions for us. They are for a three-judge District Court. I do not intimate any view on the merits. I would grant a short stay simply to preserve the jurisdiction of the three-judge District Court. Once that court is convened it can decide whether to issue a temporary restraining order or a temporary injunction while it considers the merits. Our responsibility is simply to preserve jurisdiction for the court Congress intended to hear this case. — 24 — ARTICLE 134 Abusing public 118. In that ____ did, (at) (on board) ____, on or about animal ____ 19__, wrongfully (kick a public horse in the belly) (____). Adultery 119. In that ____ (, a married man,) did, (at) (on board) ____, on or about ____ 19__, wrongfully have sexual intercourse with ____, (a married woman) (a woman) not his wife. Assault: 120. In that ____ did, (at) (on board) ____, on or about — Indecent ____ 19__, commit an indecent assault upon ____ by ____, with intent to gratify his (lust) (sexual desires). — Upon a commissioned 121. In that ____ did, (at) (on board) ____, on or about officer ____ 19__, assault ____, a commissioned officer of [the Army of the United States] [____, a friendly foreign power] [the United States (Navy) (Marine Corps) (Air Force) (Coast Guard)], by ____. NOTE. — That the accused did not know the commissioned officer to be such is a defense to this kind of assault — but not to an included assault in which the official position of the victim is immaterial. — Upon a warrant, 122. In that ____ did, (at) (on board) ____, on or about non-commissioned, ____ 19__, assault ____, a (warrant) (noncommissioned) or petty (petty) officer of [the Army of the United States] [the United officer States (Navy) (Marine Corps) (Air Force) (Coast Guard)], by ____. NOTE. — That the accused did not know the warrant, etc., officer to be such is a defense to this kind of assault — but not to an included assault in which the official position of the victim is immaterial. — 25 — FORMS — CHARGES AND SPECIFICATIONS 123. In that ____ did, (at) (on board) ____, on or about — Upon a ____ 19__, assault ____, a person then having and in the person in the execution of (air police) (military police) (shore patrol) (civil execution of law enforcement) duties, by ____. police duties 124. In that ____ did, (at) (on board) ____, on or about — With intent ____ 19__, with intent to commit (murder) (voluntary manslaughter) to commit (rape) (robbery) (sodomy) (arson) (burglary) certain (housebreaking), commit an assault upon ____ by ____. offenses 125. In that ____ did, (at) (on board) ____, on or about Assault (consummated ____ 19__, unlawfully (strike) (____) ____, a child under by a the age of sixteen years, (in) (on) the ____ with ____. battery) upon a child under the age of 16 126. In that ____ did, at ____, on or about ____ 19__, wrongfully and bigamously marry ____, having at the time of Bigamy his said marriage to ____ a lawful wife then living, to wit: ____. 127. In that ____, being at the time (a contracting officer Bribery and for ____) (the personnel officer of ____) (____), did, (at) graft: (on board) ____, on or about ____ 19__, wrongfully and unlawfully — Asking, etc. (ask) (accept) (receive) from ____, (a contracting company engaged in ____) (____), (the sum of $____) (____, of a value of about $____) (____), [with intent to have his (decision) (action) influenced with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by him the said ____ in relation to] an official matter in which the United States was and is interested, to wit: (the purchasing of military supplies from ____) (the transfer of ____ to duty with ____) (____). 128. In that ____ did, (at) (on board) ____, on or about — Promising, ____ 19__, wrongfully and unlawfully (promise) (offer) (give) etc. to ____, (his commanding officer) (the claims officer of ____) (____), (the sum of $____) (____, of a value of about $____) (____), [with intent to influence the (decision) (action) of the said ____ with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by the said ____ in relation to] an official matter in which the United States was and is interested, to wit: (the granting of leave to ____) (the processing of a claim against the United States in favor of ____) (____). 129. In that ____ did, (at) (on board) ____, on or about Check, worthless, ____ 19__, [with intent to deceive, wrongfully and unlawfully] making make and utter to ____ a certain check, in words and figures and uttering as follows, to wit: ____, (in payment of a debt in the amount of $____) (for ____) [, he, the said ____, then not intending to have sufficient funds in the ____ bank available to meet payment of said check upon its presentment for payment in due course], and did thereafter wrongfully and dishonorably fail to (place) (maintain) sufficient funds in (the ____) (said) bank for payment of such check upon its presentment for payment. NOTE. — Both allegations inclosed in brackets should be used in a case in which the accused had given the check in purported payment of a — 26 — debt not intending to have sufficient funds in the bank available to meet payment upon presentment in due course, but had not thereby obtained any money, personal property, or article of value. Obtaining money, personal property, or an article of value by means of giving a check, without intending to have sufficient funds in the bank available to meet payment upon presentment in due course, may be charged as larceny or wrongful appropriation, as the case may be, in violation of Article 121 (see 200). Without the material in brackets, this specification may be used to denounce merely a wrongful and dishonorable failure to place or maintain sufficient funds in the bank for payment of the check. Debt, failing 130. In that ____, being indebted to ____ in the sum of to pay $____ for ____, which amount became due and payable (on) (about) (on or about) ____, did, (at) (on board) ____, from ____ 19__ to ____ 19__, wrongfully and dishonorably fail to pay said debt. Disloyal 131. In that ____ did, (at) (on board) ____, on or about statements ____ 19__, with design to [promote (disloyalty) (disaffection) (disloyalty and disaffection) among (the troops) (the civilian populace) (the troops and the civilian populace)] [____], publicly utter the following statement, to wit: "____", or words to that effect, which statement was disloyal to the United States. Disorderly, 132. In that ____ was, (at) (on board) ____, on or about drunkenness, ____ 19__, (drunk) (disorderly) (drunk and disorderly) [in etc.: (command) (quarters) (station) (camp) (____)] [on board — In command, ship] [in uniform in a public place, to wit: ____] [____]. quarters, etc., or under service discrediting circumstances — Drinking 133. In that ____, a (sentinel) (____) in charge of prisoners, liquor with did, (at) (on board) ____, on or about ____ 19__, unlawfully prisoner drink intoxicating liquor with ____, a prisoner under his charge. — Drunk, prisoner 134. In that ____, a prisoner, was, (at) (on board) ____, found on or about ____ 19__, found drunk. — Incapacitating 135. In that ____ was, (at) (on board) ____, on or about oneself for ____ 19__, as a result of previous indulgence in intoxicating performance liquor, incapacitated for the proper performance of his duties. of duties through prior indulgence in intoxicating liquors Drugs, habit 136. In that ____ did, (at) (on board) ____, on or about forming, or ____ 19__, wrongfully have in his possession ____ ounces, marihuana: more or less, of (a habit forming narcotic drug, to wit: ____) — Wrongful (marihuana). possession — Wrongful use 137. In that ____ did, (at) (on board) ____, on or about ____ 19__, wrongfully use (a habit forming narcotic drug, to wit: ____) (marihuana). False or unauthorized 138. In that ____ did, (at) (on board) ____, on or about pass, ____ 19__, wrongfully [and falsely (make) (forge) (alter by making, etc. ____) (counterfeit) (tamper with by ____)] [sell to ____] [give to ____] [(use) (have in his possession) with intent to (defraud) (deceive)] (a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (____) in words and figures as — 27 — follows: ____, [he, the said ____, then well knowing the same to be (false) (unauthorized) (____)]. 139. In that ____ did, (at) (on board) ____, on or about False swearing ____ 19__, (in an affidavit) (in his testimony before a ____ court-martial at the trial of ____) (in ____) wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a statement in substance as follows: ____, which statement he did not then believe to be true. 140. In that ____ did, (at) (on board) ____, on or about Firearm, ____ 19__, through carelessness, discharge a (service rifle) discharging: (____) in the (squadroom) (tent) (barracks) (____ compartment) — Through (____) of ____. carelessness 141. In that ____ did, (at) (on board) ____, on or about — Willfully, ____ 19__, wrongfully and willfully discharge a firearm, to wit: under such ____, (in the mess hall of ____) (____), under circumstances circumstances such as to endanger human life. as to endanger life 142. In that ____, being (the driver of) (a passenger in) (the Fleeing scene senior officer in) a vehicle at the time of (an accident) (a collision), of accident did, at ____, on or about ____ 19__, wrongfully and unlawfully leave the scene of the (accident) (collision) without [rendering assistance to ____ who had been struck (and injured) by the said vehicle] [making his identity known]. 143. In that (Sergeant) (____) ____ (, boatswain's mate, Gambling with first class, U. S. Navy,) (, ____,) did, (at) (on board) ____, subordinate on or about ____ 19__, gamble with (Private) (____) ____ (, seaman apprentice, U. S. Navy) (, ____). 144. In that ____ did, (at) (on board) ____, on or about Homicide, ____ 19__, unlawfully kill ____, [by negligently ____ the negligent said ____ (in) (on) the ____ with a ____] [by driving a (motor vehicle) (____) against the said ____ in a negligent manner] [____]. 145. In that ____ did, (at) (on board) ____, on or about Impersonating ____ 19__, wrongfully and unlawfully impersonate an [(officer) an officer, etc. (warrant officer) (noncommissioned officer) (petty officer) (agent or superior authority) of the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] [an official of the Government of ____] by [publicly wearing the uniform and insignia of rank of a (lieutenant of the ____) (____)] [showing the credentials of ____] [____] (with intent to defraud ____ by ____). 146. In that ____ did, (at) (on board) ____, on or about Indecent acts ____ 19__, [take (immoral) (improper) (indecent) liberties with a child with] [commit a (lewd) (lascivious) act (upon) (with) the body of] ____, a (female) (male) under sixteen years of age, by [fondling (her) (him) and placing his hands upon (her) (his) leg and private parts] [____], with intent to (arouse) (appeal to) (gratify) the (lust) (passions) (sexual desires) of the said ____ (and ____). 147. In that ____ did, (at) (on board) ____, on or about Indecent ____ 19__, while (at a barracks window) (____) willfully exposure and wrongfully expose in an indecent manner to public view his ____. — 28 — Indecent, insulting, 148. In that ____ did, (at) (on board) ____, on or about or obscene ____ 19__, (orally) (in writing) communicate to ____, a language female, certain (indecent) (insulting) (obscene) language, to communicated wit: ____. by a male to a female Indecent, lewd 149. In that ____ did, (at) (on board) ____, on or about acts with ____ 19__, wrongfully commit an indecent, lewd, and lascivious another act with ____ by ____. Loaning money 150. In that ____ (,for and in behalf of one ____,) did, (at) at usurious (on board) ____, on or about ____ 19__, loan to ____ $____, rate under an agreement whereby he, the said ____, was to receive for the use of said money for ____ (months) (days) [interest at the rate of ____ per cent per (annum) (month)] [the sum of $____], thereby (demanding) (receiving) (demanding and receiving) an usurious and unconscionable rate of interest for said loan. Mail, taking, 151. In that ____ did, (at) (on board) ____, on or about opening, etc. ____ 19__, wrongfully and unlawfully take (a) certain [letter(s)] [postal card(s)] [package(s)], addressed to ____, [out of the (____ Post Office ____) (orderly room of ____) (unit mail box of ____) (____)] [from ____] before (it) (they) (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) directed, with design to [obstruct the correspondence] [pry into the (business) (secrets)] of ____. 152. In that ____ did, (at) (on board) ____, on or about ____ 19__, [wrongfully and unlawfully (open) (secrete) (destroy)] [steal] (a) certain [letter(s)] [postal card(s)] [package(s)], addressed to ____, which said [letter(s)] [____] [(was) (were) then [in the (____ Post Office ____) (orderly room of ____) (unit mail box of ____) (custody of ____) (____)] [on the (bunk of ____) (____)]] [had previously been committed to ____, (a representative of ____,) an official agency for the transmission of communications,] before said [letter(s)] [____] (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) directed. Mails, depositing, 153. In that ____ did, (at) (on board) ____, on or about etc., obscene ____ 19__, wrongfully and knowingly (deposit) (cause to be matter in deposited) in the (United States) (____) mails, for mailing and delivery to ____, a (letter) (picture) (____) (containing) (portraying) (suggesting) (____) certain obscene, lewd, and lascivious matter, to wit: ____. Misprision 154. In that ____, having knowledge that ____ had actually of felony committed a felony (at) (on board) ____, on or about ____ 19__, to wit: (the murder of ____) (____), did, from about ____ 19__ to about ____ 19__, wrongfully and unlawfully conceal such felony and fail to make the same known to the civil or military authorities. Nuisance, 155. In that ____ did, (at) (on board) ____, on or about committing ____ 19__, wrongfully (urinate) (defecate) (____) [on the — 29 — floor of the squadroom] [on the (deck) (bulkhead) of ____] [____]. 156. In that ____ did, (at) (on board) ____, on or about Pandering ____ 19__, wrongfully and unlawfully [(compel) (induce) (entice) (procure)] [attempt to (compel) (induce) (entice) (procure)] ____ to engage in (acts of prostitution) (sexual intercourse for hire and reward) with persons to be directed to (him) (her) by the said ____. 157. In that ____ did, (at) (on board) ____, on or about ____ 19__, wrongfully and unlawfully [receive valuable consideration, to wit: ____, on account of arranging for] [arrange for] (____) (unnamed persons) to engage in (sexual intercourse) (sodomy) with ____, (a prostitute) (____). 158. In that ____, a prisoner on parole, did, (at) (on board) Parole, ____, on or about ____ 19__, violate the conditions of his parole violation of by ____. 159. In that ____, having taken a lawful oath [in a proceeding Perjury, before (a board of officers) (a court of inquiry) concerning statutory ____] [upon the making of an affidavit as to ____] [____], a case in which a law of the United States authorized an oath to be administered, that [he, the said ____, would (testify) (declare) (depose) (certify) truly] [a written (declaration) (deposition) (certificate) subscribed by him was true], did, (at) (on board) ____, on or about ____ 19__, willfully and contrary to such oath (state) (subscribe) a material matter, to wit: ____, which matter he did not then believe to be true. NOTE. — If the matter falsely stated or subscribed under lawful oath is not material, the offense should be charged as false swearing. 160. In that ____ did, (at) (on board) ____, on or about Perjury, subornation ____ 19__, procure ____ to commit perjury by inducing him, of the said ____, to take a lawful (oath) (affirmation) in a (trial by ____ court-martial of ____) (trial by a court of competent jurisdiction, to wit: ____, of ____) (deposition for use in a trial by ____ of ____) (____) that he, the said ____, would (testify) (depose) (____) truly, and to (testify) (depose) (____) willfully, corruptly, and contrary to such (oath) (affirmation) in substance that ____, which (testimony) (deposition) (____) was upon a material matter and which the said ____ and the said ____ did not then believe to be true. 161. In that ____, (a sentinel) (overseer) (____) in charge Prisoner, of prisoners, did, (at) (on board) ____, on or about ____ 19__, allowing to wrongfully allow ____, a prisoner under his charge, to [(go do unauthorized to) (enter) (go to and enter) an unauthorized place, to wit: act ____] [(hold unauthorized conversation with ____) (loiter) (neglect his task by ____) (obtain intoxicating liquor) (____)]. 162. In that ____ did, (at) (on board) ____, on or about Public record, ____ 19__, willfully and unlawfully [(conceal) (remove) (mutilate) concealing, (obliterate) (destroy)] [appropriate with intent to (conceal) mutilating, etc. (remove) (mutilate) (obliterate) (destroy)] a public record, to wit: [the (descriptive list) (rough deck log) (quartermaster's note book) of ____] [____]. — 30 — Quarantine, medical, 163. In that ____, having been duly placed in medical quarantine breaking (in the isolation ward, ____ Hospital) (____), did, (at) (on board) ____, on or about ____ 19__, break said medical quarantine. Refusing, 164. In that ____, being in the presence of a [(general) wrongfully, (special) court-martial] [duly appointed board of officers] to testify [____] of the United States, of which ____ was (law officer) (president) (____), (and having been directed by the said ____ to qualify as a witness) (and having qualified as a witness and having been directed by the said ____ to answer the following questions put to him as a witness, "____"), did, (at) (on board) ____, on or about ____ 19__, wrongfully refuse (to qualify as a witness) (to answer said questions). Restriction, 165. In that ____, having been duly restricted to the limits breaking of ____, did, (at) (on board) ____, on or about ____ 19__, break said restriction. Sentinel, lookout, 166. In that ____ did, (at) (on board) ____, on or about offenses ____ 19__, [(attempt) (threaten) to] (unlawfully strike) (assault) against and by ____, a (sentinel) (lookout) in the execution of his duty, [(in) (on) the ____] with (a) (his) ____. 167. In that ____, (a prisoner), did, (at) (on board) ____, on or about ____ 19__, wrongfully [use the following (threatening) (insulting) (threatening and insulting) language] [behave in an (insubordinate) (disrespectful) (insubordinate and disrespectful) manner] toward ____, a (sentinel) (lookout) in the execution of his duty, ["____", or words to that effect] [by ____]. 168. In that ____, while posted as a (sentinel) (lookout), did, (at) (on board) ____, on or about ____ 19__, (loiter) (wrongfully sit down) on his post. Stolen property, 169. In that ____ did, (at) (on board) ____, on or about knowingly receiving ____ 19__, unlawfully (receive) (buy) (conceal) ____, of a value of about $____, the property of ____, which property, as he, the said ____, then well knew, had been stolen. Straggling 170. In that ____ did, at ____, on or about ____ 19__, while accompanying his organization on (a practice march) (maneuvers) (____), without just cause, straggle. Threat, communicating 171. In that ____ did, (at) (on board) ____, on or about ____ 19__, wrongfully communicate to ____ a threat to (injure ____ by ____) (accuse ____ of having committed the offense of ____) (____). Unclean accouterment, 172. In that ____ was, (at) (on board) ____, on or about arms, ____ 19__, found with an unclean (rifle) (uniform) (____), etc. he being at fault in failing to maintain such property in a clean condition. Uniform, unclean, 173. In that ____ did, on or about ____ 19__, wrongfully appear improper, (at) (on board) ____ (without his ____) (in an unclean appearing in ____) (with an unclean ____) (____). Unlawful entry 174. In that ____ did, (at) (on board) ____, on or about ____ 19__, unlawfully enter the (dwelling house) (garage) (warehouse) (tent) (vegetable garden) (orchard) (stateroom) (____) of ____. — 31 — 175. In that ____ did, (at) (on board) ____, on or about Weapon, concealed, ____ 19__, unlawfully carry a concealed weapon, to wit: a carrying ____. 176. In that ____ did, (at) (on board) ____, on or about Wearing unauthorized ____ 19__, wrongfully and without authority wear upon his insignia, (uniform) (civilian clothing) [the insignia of grade of a (master etc. sergeant of ____) (chief gunner's mate of ____)] [the Combat Infantryman Badge] [the Distinguished Service Cross] [the ribbon representing the Silver Star] [the lapel button representing the Legion of Merit] [____]. Abusing public 118. In that ____ did, (at) (on board) ____, on or about animal ____ 19__, wrongfully (kick a public horse in the belly) (____). Adultery 119. In that ____ (, a married man,) did, (at) (on board) ____, on or about ____ 19__, wrongfully have sexual intercourse with ____, (a married woman) (a woman) not his wife. Assault: 120. In that ____ did, (at) (on board) ____, on or about — Indecent ____ 19__, commit an indecent assault upon ____ by ____, with intent to gratify his (lust) (sexual desires). — Upon a commissioned 121. In that ____ did, (at) (on board) ____, on or about officer ____ 19__, assault ____, a commissioned officer of [the Army of the United States] [____, a friendly foreign power] [the United States (Navy) (Marine Corps) (Air Force) (Coast Guard)], by ____. NOTE. — That the accused did not know the commissioned officer to be such is a defense to this kind of assault — but not to an included assault in which the official position of the victim is immaterial. — Upon a warrant, 122. In that ____ did, (at) (on board) ____, on or about non-commissioned, ____ 19__, assault ____, a (warrant) (noncommissioned) or petty (petty) officer of [the Army of the United States] [the United officer States (Navy) (Marine Corps) (Air Force) (Coast Guard)], by ____. NOTE. — That the accused did not know the warrant, etc., officer to be such is a defense to this kind of assault — but not to an included assault in which the official position of the victim is immaterial. 123. In that ____ did, (at) (on board) ____, on or about — Upon a ____ 19__, assault ____, a person then having and in the person in the execution of (air police) (military police) (shore patrol) (civil execution of law enforcement) duties, by ____. police duties 124. In that ____ did, (at) (on board) ____, on or about — With intent ____ 19__, with intent to commit (murder) (voluntary manslaughter) to commit (rape) (robbery) (sodomy) (arson) (burglary) certain (housebreaking), commit an assault upon ____ by ____. offenses 125. In that ____ did, (at) (on board) ____, on or about Assault (consummated ____ 19__, unlawfully (strike) (____) ____, a child under by a the age of sixteen years, (in) (on) the ____ with ____. battery) upon a child under the age of 16 126. In that ____ did, at ____, on or about ____ 19__, wrongfully and bigamously marry ____, having at the time of Bigamy his said marriage to ____ a lawful wife then living, to wit: ____. 127. In that ____, being at the time (a contracting officer Bribery and for ____) (the personnel officer of ____) (____), did, (at) graft: (on board) ____, on or about ____ 19__, wrongfully and unlawfully — Asking, etc. (ask) (accept) (receive) from ____, (a contracting company engaged in ____) (____), (the sum of $____) (____, of a value of about $____) (____), [with intent to have his (decision) (action) influenced with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by him the said ____ in relation to] an official matter in which the United States was and is interested, to wit: (the purchasing of military supplies from ____) (the transfer of ____ to duty with ____) (____). 128. In that ____ did, (at) (on board) ____, on or about — Promising, ____ 19__, wrongfully and unlawfully (promise) (offer) (give) etc. to ____, (his commanding officer) (the claims officer of ____) (____), (the sum of $____) (____, of a value of about $____) (____), [with intent to influence the (decision) (action) of the said ____ with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by the said ____ in relation to] an official matter in which the United States was and is interested, to wit: (the granting of leave to ____) (the processing of a claim against the United States in favor of ____) (____). 129. In that ____ did, (at) (on board) ____, on or about Check, worthless, ____ 19__, [with intent to deceive, wrongfully and unlawfully] making make and utter to ____ a certain check, in words and figures and uttering as follows, to wit: ____, (in payment of a debt in the amount of $____) (for ____) [, he, the said ____, then not intending to have sufficient funds in the ____ bank available to meet payment of said check upon its presentment for payment in due course], and did thereafter wrongfully and dishonorably fail to (place) (maintain) sufficient funds in (the ____) (said) bank for payment of such check upon its presentment for payment. NOTE. — Both allegations inclosed in brackets should be used in a case in which the accused had given the check in purported payment of a payment upon presentment in due course, but had not thereby obtained any money, personal property, or article of value. Obtaining money, personal property, or an article of value by means of giving a check, without intending to have sufficient funds in the bank available to meet payment upon presentment in due course, may be charged as larceny or wrongful appropriation, as the case may be, in violation of Article 121 (see 200). Without the material in brackets, this specification may be used to denounce merely a wrongful and dishonorable failure to place or maintain sufficient funds in the bank for payment of the check. Debt, failing 130. In that ____, being indebted to ____ in the sum of to pay $____ for ____, which amount became due and payable (on) (about) (on or about) ____, did, (at) (on board) ____, from ____ 19__ to ____ 19__, wrongfully and dishonorably fail to pay said debt. Disloyal 131. In that ____ did, (at) (on board) ____, on or about statements ____ 19__, with design to [promote (disloyalty) (disaffection) (disloyalty and disaffection) among (the troops) (the civilian populace) (the troops and the civilian populace)] [____], publicly utter the following statement, to wit: "____", or words to that effect, which statement was disloyal to the United States. Disorderly, 132. In that ____ was, (at) (on board) ____, on or about drunkenness, ____ 19__, (drunk) (disorderly) (drunk and disorderly) [in etc.: (command) (quarters) (station) (camp) (____)] [on board — In command, ship] [in uniform in a public place, to wit: ____] [____]. quarters, etc., or under service discrediting circumstances — Drinking 133. In that ____, a (sentinel) (____) in charge of prisoners, liquor with did, (at) (on board) ____, on or about ____ 19__, unlawfully prisoner drink intoxicating liquor with ____, a prisoner under his charge. — Drunk, prisoner 134. In that ____, a prisoner, was, (at) (on board) ____, found on or about ____ 19__, found drunk. — Incapacitating 135. In that ____ was, (at) (on board) ____, on or about oneself for ____ 19__, as a result of previous indulgence in intoxicating performance liquor, incapacitated for the proper performance of his duties. of duties through prior indulgence in intoxicating liquors Drugs, habit 136. In that ____ did, (at) (on board) ____, on or about forming, or ____ 19__, wrongfully have in his possession ____ ounces, marihuana: more or less, of (a habit forming narcotic drug, to wit: ____) — Wrongful (marihuana). possession — Wrongful use 137. In that ____ did, (at) (on board) ____, on or about ____ 19__, wrongfully use (a habit forming narcotic drug, to wit: ____) (marihuana). False or unauthorized 138. In that ____ did, (at) (on board) ____, on or about pass, ____ 19__, wrongfully [and falsely (make) (forge) (alter by making, etc. ____) (counterfeit) (tamper with by ____)] [sell to ____] [give to ____] [(use) (have in his possession) with intent to (defraud) (deceive)] (a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (____) in words and figures as to be (false) (unauthorized) (____)]. 139. In that ____ did, (at) (on board) ____, on or about False swearing ____ 19__, (in an affidavit) (in his testimony before a ____ court-martial at the trial of ____) (in ____) wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a statement in substance as follows: ____, which statement he did not then believe to be true. 140. In that ____ did, (at) (on board) ____, on or about Firearm, ____ 19__, through carelessness, discharge a (service rifle) discharging: (____) in the (squadroom) (tent) (barracks) (____ compartment) — Through (____) of ____. carelessness 141. In that ____ did, (at) (on board) ____, on or about — Willfully, ____ 19__, wrongfully and willfully discharge a firearm, to wit: under such ____, (in the mess hall of ____) (____), under circumstances circumstances such as to endanger human life. as to endanger life 142. In that ____, being (the driver of) (a passenger in) (the Fleeing scene senior officer in) a vehicle at the time of (an accident) (a collision), of accident did, at ____, on or about ____ 19__, wrongfully and unlawfully leave the scene of the (accident) (collision) without [rendering assistance to ____ who had been struck (and injured) by the said vehicle] [making his identity known]. 143. In that (Sergeant) (____) ____ (, boatswain's mate, Gambling with first class, U. S. Navy,) (, ____,) did, (at) (on board) ____, subordinate on or about ____ 19__, gamble with (Private) (____) ____ (, seaman apprentice, U. S. Navy) (, ____). 144. In that ____ did, (at) (on board) ____, on or about Homicide, ____ 19__, unlawfully kill ____, [by negligently ____ the negligent said ____ (in) (on) the ____ with a ____] [by driving a (motor vehicle) (____) against the said ____ in a negligent manner] [____]. 145. In that ____ did, (at) (on board) ____, on or about Impersonating ____ 19__, wrongfully and unlawfully impersonate an [(officer) an officer, etc. (warrant officer) (noncommissioned officer) (petty officer) (agent or superior authority) of the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] [an official of the Government of ____] by [publicly wearing the uniform and insignia of rank of a (lieutenant of the ____) (____)] [showing the credentials of ____] [____] (with intent to defraud ____ by ____). 146. In that ____ did, (at) (on board) ____, on or about Indecent acts ____ 19__, [take (immoral) (improper) (indecent) liberties with a child with] [commit a (lewd) (lascivious) act (upon) (with) the body of] ____, a (female) (male) under sixteen years of age, by [fondling (her) (him) and placing his hands upon (her) (his) leg and private parts] [____], with intent to (arouse) (appeal to) (gratify) the (lust) (passions) (sexual desires) of the said ____ (and ____). 147. In that ____ did, (at) (on board) ____, on or about Indecent ____ 19__, while (at a barracks window) (____) willfully exposure and wrongfully expose in an indecent manner to public view his ____. or obscene ____ 19__, (orally) (in writing) communicate to ____, a language female, certain (indecent) (insulting) (obscene) language, to communicated wit: ____. by a male to a female Indecent, lewd 149. In that ____ did, (at) (on board) ____, on or about acts with ____ 19__, wrongfully commit an indecent, lewd, and lascivious another act with ____ by ____. Loaning money 150. In that ____ (,for and in behalf of one ____,) did, (at) at usurious (on board) ____, on or about ____ 19__, loan to ____ $____, rate under an agreement whereby he, the said ____, was to receive for the use of said money for ____ (months) (days) [interest at the rate of ____ per cent per (annum) (month)] [the sum of $____], thereby (demanding) (receiving) (demanding and receiving) an usurious and unconscionable rate of interest for said loan. Mail, taking, 151. In that ____ did, (at) (on board) ____, on or about opening, etc. ____ 19__, wrongfully and unlawfully take (a) certain [letter(s)] [postal card(s)] [package(s)], addressed to ____, [out of the (____ Post Office ____) (orderly room of ____) (unit mail box of ____) (____)] [from ____] before (it) (they) (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) directed, with design to [obstruct the correspondence] [pry into the (business) (secrets)] of ____. 152. In that ____ did, (at) (on board) ____, on or about ____ 19__, [wrongfully and unlawfully (open) (secrete) (destroy)] [steal] (a) certain [letter(s)] [postal card(s)] [package(s)], addressed to ____, which said [letter(s)] [____] [(was) (were) then [in the (____ Post Office ____) (orderly room of ____) (unit mail box of ____) (custody of ____) (____)] [on the (bunk of ____) (____)]] [had previously been committed to ____, (a representative of ____,) an official agency for the transmission of communications,] before said [letter(s)] [____] (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) directed. Mails, depositing, 153. In that ____ did, (at) (on board) ____, on or about etc., obscene ____ 19__, wrongfully and knowingly (deposit) (cause to be matter in deposited) in the (United States) (____) mails, for mailing and delivery to ____, a (letter) (picture) (____) (containing) (portraying) (suggesting) (____) certain obscene, lewd, and lascivious matter, to wit: ____. Misprision 154. In that ____, having knowledge that ____ had actually of felony committed a felony (at) (on board) ____, on or about ____ 19__, to wit: (the murder of ____) (____), did, from about ____ 19__ to about ____ 19__, wrongfully and unlawfully conceal such felony and fail to make the same known to the civil or military authorities. Nuisance, 155. In that ____ did, (at) (on board) ____, on or about committing ____ 19__, wrongfully (urinate) (defecate) (____) [on the [____]. 156. In that ____ did, (at) (on board) ____, on or about Pandering ____ 19__, wrongfully and unlawfully [(compel) (induce) (entice) (procure)] [attempt to (compel) (induce) (entice) (procure)] ____ to engage in (acts of prostitution) (sexual intercourse for hire and reward) with persons to be directed to (him) (her) by the said ____. 157. In that ____ did, (at) (on board) ____, on or about ____ 19__, wrongfully and unlawfully [receive valuable consideration, to wit: ____, on account of arranging for] [arrange for] (____) (unnamed persons) to engage in (sexual intercourse) (sodomy) with ____, (a prostitute) (____). 158. In that ____, a prisoner on parole, did, (at) (on board) Parole, ____, on or about ____ 19__, violate the conditions of his parole violation of by ____. 159. In that ____, having taken a lawful oath [in a proceeding Perjury, before (a board of officers) (a court of inquiry) concerning statutory ____] [upon the making of an affidavit as to ____] [____], a case in which a law of the United States authorized an oath to be administered, that [he, the said ____, would (testify) (declare) (depose) (certify) truly] [a written (declaration) (deposition) (certificate) subscribed by him was true], did, (at) (on board) ____, on or about ____ 19__, willfully and contrary to such oath (state) (subscribe) a material matter, to wit: ____, which matter he did not then believe to be true. NOTE. — If the matter falsely stated or subscribed under lawful oath is not material, the offense should be charged as false swearing. 160. In that ____ did, (at) (on board) ____, on or about Perjury, subornation ____ 19__, procure ____ to commit perjury by inducing him, of the said ____, to take a lawful (oath) (affirmation) in a (trial by ____ court-martial of ____) (trial by a court of competent jurisdiction, to wit: ____, of ____) (deposition for use in a trial by ____ of ____) (____) that he, the said ____, would (testify) (depose) (____) truly, and to (testify) (depose) (____) willfully, corruptly, and contrary to such (oath) (affirmation) in substance that ____, which (testimony) (deposition) (____) was upon a material matter and which the said ____ and the said ____ did not then believe to be true. 161. In that ____, (a sentinel) (overseer) (____) in charge Prisoner, of prisoners, did, (at) (on board) ____, on or about ____ 19__, allowing to wrongfully allow ____, a prisoner under his charge, to [(go do unauthorized to) (enter) (go to and enter) an unauthorized place, to wit: act ____] [(hold unauthorized conversation with ____) (loiter) (neglect his task by ____) (obtain intoxicating liquor) (____)]. 162. In that ____ did, (at) (on board) ____, on or about Public record, ____ 19__, willfully and unlawfully [(conceal) (remove) (mutilate) concealing, (obliterate) (destroy)] [appropriate with intent to (conceal) mutilating, etc. (remove) (mutilate) (obliterate) (destroy)] a public record, to wit: [the (descriptive list) (rough deck log) (quartermaster's note book) of ____] [____]. breaking (in the isolation ward, ____ Hospital) (____), did, (at) (on board) ____, on or about ____ 19__, break said medical quarantine. Refusing, 164. In that ____, being in the presence of a [(general) wrongfully, (special) court-martial] [duly appointed board of officers] to testify [____] of the United States, of which ____ was (law officer) (president) (____), (and having been directed by the said ____ to qualify as a witness) (and having qualified as a witness and having been directed by the said ____ to answer the following questions put to him as a witness, "____"), did, (at) (on board) ____, on or about ____ 19__, wrongfully refuse (to qualify as a witness) (to answer said questions). Restriction, 165. In that ____, having been duly restricted to the limits breaking of ____, did, (at) (on board) ____, on or about ____ 19__, break said restriction. Sentinel, lookout, 166. In that ____ did, (at) (on board) ____, on or about offenses ____ 19__, [(attempt) (threaten) to] (unlawfully strike) (assault) against and by ____, a (sentinel) (lookout) in the execution of his duty, [(in) (on) the ____] with (a) (his) ____. 167. In that ____, (a prisoner), did, (at) (on board) ____, on or about ____ 19__, wrongfully [use the following (threatening) (insulting) (threatening and insulting) language] [behave in an (insubordinate) (disrespectful) (insubordinate and disrespectful) manner] toward ____, a (sentinel) (lookout) in the execution of his duty, ["____", or words to that effect] [by ____]. 168. In that ____, while posted as a (sentinel) (lookout), did, (at) (on board) ____, on or about ____ 19__, (loiter) (wrongfully sit down) on his post. Stolen property, 169. In that ____ did, (at) (on board) ____, on or about knowingly receiving ____ 19__, unlawfully (receive) (buy) (conceal) ____, of a value of about $____, the property of ____, which property, as he, the said ____, then well knew, had been stolen. Straggling 170. In that ____ did, at ____, on or about ____ 19__, while accompanying his organization on (a practice march) (maneuvers) (____), without just cause, straggle. Threat, communicating 171. In that ____ did, (at) (on board) ____, on or about ____ 19__, wrongfully communicate to ____ a threat to (injure ____ by ____) (accuse ____ of having committed the offense of ____) (____). Unclean accouterment, 172. In that ____ was, (at) (on board) ____, on or about arms, ____ 19__, found with an unclean (rifle) (uniform) (____), etc. he being at fault in failing to maintain such property in a clean condition. Uniform, unclean, 173. In that ____ did, on or about ____ 19__, wrongfully appear improper, (at) (on board) ____ (without his ____) (in an unclean appearing in ____) (with an unclean ____) (____). Unlawful entry 174. In that ____ did, (at) (on board) ____, on or about ____ 19__, unlawfully enter the (dwelling house) (garage) (warehouse) (tent) (vegetable garden) (orchard) (stateroom) (____) of ____. ____ 19__, unlawfully carry a concealed weapon, to wit: a carrying ____. 176. In that ____ did, (at) (on board) ____, on or about Wearing unauthorized ____ 19__, wrongfully and without authority wear upon his insignia, (uniform) (civilian clothing) [the insignia of grade of a (master etc. sergeant of ____) (chief gunner's mate of ____)] [the Combat Infantryman Badge] [the Distinguished Service Cross] [the ribbon representing the Silver Star] [the lapel button representing the Legion of Merit] [____]. Footnotes [1] Notes: [1] Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810 (1965) [2] United States v. Tempia, April 25, 1967 [3] Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950); Beard v. Stahr, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321 (1962); Gorko v. Commanding Officer, 314 F.2d 858 (10th Cir. 1963) [4] W.E.B. DuBois Clubs v. Katzenbach, 277 F.Supp. 971, April 18, 1967 (Dist.Ct.Dist. of Col., 3-judge) [6] Notes: [1-1] 1 Apparently Levy would not give Special Forces Aidmen instruction in dermatology because the instruction would have involved exposing the private parts of his female patients who were suffering from venereal diseases. Levy thought this exposure, without the consent of the patients, violated professional ethics [2-1] 2 One of the evils of an overly broad statute is that it leaves the definition, and therefore the creation, of crimes to the discretion of minor executive or military officials. The attached appendix (the Manual's suggested forms for drafting charges and specifications under Article 134) shows exactly how broad the discretion is. And the suggested forms do not purport to be exclusive [3-1] 3 He alleges, among other things, that at first his commanding officer decided upon a minor form of non-judicial discipline and that only after he learned of Levy's political opinion was the court martial decided upon [4-1] 4 The problem concerns not only Levy's First Amendment rights but also the First Amendment rights of others, both military personnel and civilians, who may view Levy's court martial as governmental dissatisfaction with dissent [5] The cases cited in Footnote 3 of Judge Leventhal's opinion do not deal with statutes which impinge upon First Amendment rights