Interference With Vietnam War Effort.

Possibly the most cel-ebrated governmental action in response to dissent to the Vietnam War—the prosecution of Dr. Benjamin Spock and four others for conspiring to counsel, aid, and abet persons to evade the draft—failed to reach the Supreme Court.754 Aside from a comparatively minor case,755 the Court’s sole encounter with a Vietnam War protest allegedly involving protected “symbolic conduct” was United States v. O’Brien.756 That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his draft card. “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”757 Finding that the government’s interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than necessary to serve the interest, the Court upheld the statute. Subsequently, the Court upheld a “passive enforcement” policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.758


United States v. Spock, 416 F.2d 165 (1st Cir. 1969). back
In Schacht v. United States, 398 U.S. 58 (1970), the Court reversed a conviction under 18 U.S.C. § 702 for wearing a military uniform without authority. The defendant had worn the uniform in a skit in an on-the-street anti-war demonstration, and 10 U.S.C. § 772(f) authorized the wearing of a military uniform in a “theatrical production” so long as the performance did not “tend to discredit” the military. This last clause the Court held an unconstitutional limitation of speech. back
391 U.S. 367 (1968). back
391 U.S. at 376–77. The Court applied the O’Brien test less deferentially in Turner Broadcasting System v. FCC, 512 U.S. 622 (1994). back
Wayte v. United States, 470 U.S. 598 (1985). The incidental restriction on First Amendment rights to speak out against the draft was no greater than necessary to further the government’s interests in “prosecutorial efficiency,” obtaining sufficient proof prior to prosecution, and promoting general deterrence (or not appearing to condone open defiance of the law). See also United States v. Albertini, 472 U.S. 675 (1985) (order banning a civilian from entering military base upheld as applied to attendance at base open house by individual previously convicted of destroying military property). back