## Facts

- The United States indicted Philip Berrigan, David Eberhardt, Thomas Lewis, and James Mengel for actions taken during an antiwar protest aimed at Selective Service records.
- The indictment charged that defendants willfully (1) injured U.S. property, (2) mutilated records filed in a U.S. public office, and (3) hindered administration of the Military Selective Service Act.
- Before trial, defendants sought to present evidence and argument that the Vietnam War was illegal and immoral under international law, constitutional law, and post–World War II judgments.
- Defendants proposed calling experts in international law to testify that U.S. actions in Vietnam were illegal.
- Defendants argued their purpose was to prevent alleged governmental crimes, so the required mens rea was absent or their conduct was justified.
- Defendants also claimed their destruction/mutilation of draft records was expressive conduct protected by the First Amendment.

## Issues

1. Whether defendants’ sincere belief that the Vietnam War was illegal or immoral could negate “willfulness” or otherwise legally justify damaging government property, mutilating public records, and hindering Selective Service administration.
2. Whether mutilating and destroying Selective Service records qualified as protected symbolic speech under the First Amendment.
3. Whether a “Nuremberg”-type defense premised on alleged illegality of U.S. conduct in Vietnam was legally available and justiciable in this criminal prosecution.

## Decision

- The court ruled pretrial that defendants’ belief in the illegality or immorality of the Vietnam War neither negated willfulness nor supplied a legal justification for violating the charged criminal statutes.
- The court rejected the First Amendment claim, holding that the charged conduct (injuring property and mutilating records) was punishable notwithstanding defendants’ asserted expressive purpose.
- The court held that the proposed “Nuremberg defense” was not available; challenges to the legality of U.S. military policy in Vietnam were not a proper basis to excuse the charged offenses.
- The court excluded evidence and argument offered to prove the war’s illegality or immorality and limited the trial to the statutory elements of the charged offenses.

## Legal Principles

- Proof of a good motive, including sincere religious or moral belief, does not negate criminal intent where the defendant intentionally commits prohibited acts with the required mens rea.
- A defendant may not claim a personal legal veto over valid criminal laws by asserting that the government is acting unlawfully; such a theory does not create a justification defense.
- The First Amendment does not immunize otherwise criminal conduct merely because the conduct is intended to communicate a political message.
- A criminal trial for property damage and interference with government functions is not a vehicle to litigate broad disputes over the legality of foreign policy or war; such proffers may be excluded as irrelevant and beyond proper judicial inquiry in the case.

## Conclusion

The court restricted the defenses available at trial, holding that opposition to the Vietnam War—however sincerely held—could not negate willfulness, justify destruction of Selective Service records, or convert the charged conduct into constitutionally protected expression, and it excluded war-illegality and “Nuremberg” evidence and arguments.


United States v. Berrigan, 283 F. Supp. 336 (D. Md. 1968)