The Spock Conviction: What Comes Next?
Haskell, Gordon
AFEDERAL district court in Boston has found Dr. Benjamin Spock and three of his codefendants guilty of conspiring to "hinder and interfere ... with the administration" of the Selective Service...
...They had urged no one to violate the law...
...We can only guess how likely it is that a majority of the Supreme Court will be willing to review the case on such broad political grounds or, having agreed to review it, will remand it for a new trial at which the defendants will be allowed to prove their charges against the war and the draft...
...Yet, should they gain a reversal on the narrow grounds that what they said and did was, indeed, within the ambit of the First Amendment's protection of free speech, all opponents of this dirty war will feel free to step up political and ideological attacks on it...
...Michael Ferber's sermon delivered in October in the Arlington Street Church in Boston (quoted in the indictment) used the following words: But let us be certain that we have thoughtthrough the consequences of our actions in theoutside world, and that these consequences are what we want to bring about...
...and no one had violated the law pursuant to their urging...
...Let us make surewe are ready to work hard and long with eachother in the months to come, working to makeit difficult and politically dangerous for the government to prosecute us, working to help anyone and everyone to find ways of avoiding thedraft, to help disrupt the workings of the draftand the armed forces until the war is over...
...Only two members of the Court have indicated any inclination to lock horns with Congress and the Administration on a matter so fraught with political passion as the war in Vietnam...
...Once the court had ruled it would take no evidence on the legality or constitutionality of the war in Vietnam, or on the draft as a means of prosecuting that war, the issues became relatively narrow: Had the defendants confined themselves to advocating their views on the war and the draft, and to advising young people of all the rights and procedures available to them under the law —or had they conspired to urge young people to violate the law in a context in which their urging or "counseling" created a clear and present danger to the administration of the law...
...The decision will be appealed...
...But the danger in the conspiracy count is that people can be found guilty of conspiracy to violate a law even if there is no evidence that they succeeded in violating it...
...It has been amply demonstrated that these defendants had not "conspired" in any ordinary sense of the word...
...The rather narrow legalistic stance assumed by the defense in the Spock trial changed it a good deal from what many had been led to expect, either by their own wishes or by the colorful language employed by some of the defendants before their indictment...
...THUS, while the advocacy of revolution, like the advocacy of vivisection, is protected, the law has permitted convictions for conspiracies to advocate revolution...
...with the administration" of the Selective Service Act, and to "counsel, aid and abet...
...refuse and evade service in the armed forces . . ." They have been sentenced to two years in prison and fined from $5,000 to $10,000 each...
...One ground Will be that in denying the defendants an opportunity to prove the illegality or unconstitutionality of the war and/or draft, the court had denied them a basic element in their defense...
...It is possible that the higher courts will find for them on the ground that what they had actually done (make speeches, sign statements, and transport some discarded draft cards to the Department of Justice) was clearly protected by the First Amendment...
...the registrants to unlawfully...
...An analogy comes to mind: if the police are enforcing an illegal ordinance banning a public assembly, or are interpreting a valid regulatory ordinance in a clearly discriminatory (and hence illegal) manner...
...It was in respect to the conspiracy and freespeech charges that the trial in Boston took an unexpected turn...
...At their trial, however, the defendants all claimed that they had not sought to persuade draftees to defy the law, let alone disrupt the workings of the armed forces...
...It might, however, have a further chilling effect on such acts as draft-card burning, which had been popular before the Court refused to sustain them as symbolic speech...
...For all the government really sought to prove was not that these defendants had been successful in interfering with the draft, but that COMMENTS AND OPINIONS they had taken steps in concert which were calculated to do so...
...Prior to their indictment, it had seemed to some that at least the most prominent among the defendants had tried to do everything they could to persuade young people to defy and violate the draft law...
...The chances seem very poor...
...Should the higher courts sustain the convictions, this alone would not necessarily open the door to wholesale prosecutions of persons urging the illegality of the war or the draft, or a different course for U.S...
...Or the courts could find that their acts were so ineffectually related to their declared intentions that the government had failed to sustain the very light burden of proof required in a conspiracy case—namely that some act must have been performed to effectuate the alleged aims of the conspiracy...
...foreign policy...
...We regret this oversight...
...The vice that attends so many conspiracy indictments (especially in the political field) is not the one lambasted in most comments on this case...
...The government sought to make heavy capital out of the pre-indictment insistence by some of the defendants that they were in fact violating the draft law and should be considered in precisely the same category, legally, as draftees who refused to be inducted...
...Spock could safely denounce the draft law, or expound the virtue of civil disobedience to it, the introduction of the "conspiracy" charge makes the same conduct far more easily punishable...
...It is hardly likely, under such circumstances, that the organ-ers of the demonstration would be found guilty of an illegal conspiracy because they urged their followers to do things which were later found to have been legal...
...Should they find for the defendants on the latter ground, it would appear that claims by individuals that they are violating and intend to violate the law, however vociferously broadcast, are insufficient grounds on which to base a criminal prosecution...
...and that what the defendants did here was confined to speech — speech protected by the First Amendment...
...They insisted that they had merely expressed their own opinions, and had urged those who had already decided to defy the law to act only upon a full understanding of the consequences of such actions...
...All the government needs prove is that they took some steps in furtherance of a conspiracy...
...and if the demonstrators have exhausted all legal remedies in an effort to have these restrictions set aside, people who demon strate and get arrested and convicted in a local court will, almost certainly, have their convictions reversed on appeal...
...Let us make sure we can let others depend on us...
...Thus, if the draft is illegal, violating it, or successfully inciting others to violate it, is hardly a crime...
...What had been billed as one of the great freespeech cases of our era went off only as a limited drama...
...THE EnrroRs...
...The article by Allen Graubard, "One-Dimensional Pessimism: A Critique of Herbert Marcuse," which appeared in our May–June 1968 issue, should have carried the notation that an earlier version of it had been printed in Mosaic, the journal of the Harvard Hillel Society...
...The other grounds which will, no doubt, be pre3sed in the appeal are that the "conspiracy doctrine" was much too broadly applied...
...Thus they claimed that what they had done was merely to express opin ions by word and symbolic action, not to create any clear and present danger that the draft or the army would be disrupted or avoided by persons acting in response to their urgings...
...In this case, while Dr...
...At trial, the defendants sought to prove that this had been neither the intent nor consequence of their actions...
...The jury found against them...
Vol. 15 • September 1968 • No. 5
