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  • James Houser

October 15, 1965 - The Draft Card Burning & Free Speech in Wartime

Updated: Jun 13, 2021

October 15, 1965. At a protest against the Vietnam War, David J. Miller of the Catholic Worker Movement publicly burns his draft card. Three days later, he is arrested by the FBI and charged with violating Federal law. Is Miller’s action free speech? Is it treason? When does free speech go too far in wartime? Sorry guys, no battles today. It’s time to talk about the First Amendment.

This is a bit of a passion post for me, because I’m something of a First Amendment absolutist in the extreme sense. “Congress shall make no law” is pretty damn clear to me. I am going to try and prevent this post from straying into modern politics; even though I have a tendency to be very vocal in other places, I try to keep my history posts relatively neutral for everyone’s sanity as well as my own. So I’ll be discussing the history of American free speech in wartime, and keep my own thoughts until the end.

The First Amendment to the United States Constitution *looks* extremely clear. You’ve heard it:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

So obviously the most important clause for our purposes today is: “Congress shall make no law…abridging the freedom of speech.”

That sounds nice and clean. But what is speech? What is abridging? If Congress can’t do it, can the states? Can the military? Can the President? Oh boy, guys, looks like we’ve got a LEGAL question. This should be fun! (Note: I am not a lawyer. I’m not pretending to be one.) And for legal questions concerning the Constitution, we often end up in front of the Supreme Court. So part of today’s post will necessarily deal with Supreme Court cases throughout our nation’s history.

There’s a neat little phrase often used when interpreting the Constitution, and no one’s quite sure of its origin. The phrase is “The Constitution is not a suicide pact.” Essentially, constitutional restrictions on the government can be overridden when the survival of the nation is at stake. If someone is out there shouting out our military plans to the world, for instance, the government has a right to silence him – First Amendment be damned.

This appeal to security, of course, is utterly *rife* with the potential for abuse. The Fourth Amendment has been torn to pieces by various law enforcement or security agencies using the ever-present need for security to justify anything and everything they do. This line is a hard one to draw, especially when our leaders feel that the safety – nay, the existence – of the nation is at stake. Where DO you draw the line between free speech and the safety of the nation?

The first time this issue really came up, to my knowledge, was quite early in our nation’s history. In 1798, the very young United States was engaged in what is called the “Quasi-War” with France. This was essentially an undeclared naval war with Revolutionary France from 1798 to 1800, brought on by an extensive series of events that just aren’t important at the moment.

President John Adams was having a tough time in his administration. He was the favorite punching bag of every newspaper in the country, especially those aligned with Thomas Jefferson’s Democratic-Republican Party. The Democrat-Republicans openly supported France and were harshly critical of Adams’ prosecution of the Quasi-War; some of the newspapers even appeared to advocate a Revolution like the one in France. These sentiments alarmed Adams and his Federalist Party, who were concerned that the nation might break apart under this political and military pressure.

On July 14, 1798, President Adams signed the Alien and Sedition Acts, one of the hot-button issues of his term in office. The Alien Acts gave the President powers to deport foreign nationals considered dangerous and imprison any male citizen of a hostile nation. Part of the Alien Acts are still in the United States Code, and have been used in wartime ever since. The Sedition Act was the one that pissed people off, though. The Sedition Act permitted the deportation, fining, or imprisonment of anyone deemed a threat or publishing “false, scandalous and malicious writing” against the United States government. This was obviously targeted at Adams’ Democratic-Republican rivals, and many of Adams’ least favorite journalists were arrested for violating the Sedition Act.

The Sedition Act was obviously a violation of the First Amendment, and provoked an immediate outcry from many citizens. Associating criticism of the government with outright treason (still a favorite tactic of the party in power) was considered especially insulting. In response to Adams’ new law, Thomas Jefferson and James Madison authored the controversial Virginia and Kentucky Resolutions, which argued that states had the authority to declare Congressional acts unconstitutional. This ITSELF caused a firestorm, since it essentially implied that the states could “nullify” any threatening act of Congress, an argument that would be used early and often by secessionists leading up to the Civil War. The Democrat-Republicans helped engineer multiple protests against the Sedition Act, and it became a central issue in the Presidential Election of 1800. (Contrary to everyone’s favorite musical, Hamilton alone did not decide that election.)

The Sedition Act may have shut a couple of Adams’ critics down, but it could not win the election for him. When Thomas Jefferson became President in 1800 after defeating John Adams, he allowed the Sedition Act to expire in 1801. With the Act gone and the Quasi-War over by 1800, the issue had reached an outcome without a resolution. The Sedition Act never even went before the Supreme Court, which still hadn’t asserted its right of “judicial review” that gave it the power to decide Constitutional issues. The Sedition Act died a quiet death in fact and in memory.

In retrospect, Adams was not only *wrong* to invoke the Sedition Act, but it was also a *dumb* decision. The law violated the First Amendment as clear as day. Americans were outraged that Adams could just…lock people up for saying bad things about his administration. Ironically, the Sedition Act only caused MORE people to criticize Adams. In retrospect too, the United States was in no real danger from this exercise of free speech. There was no nascent Revolution. As many an American administration has since, Adams overreacted to a perceived threat and it blew up in his face. No wonder he was our first one-term President.

It wouldn’t be long, though, before there WAS a real threat to the nation’s existence. Cue “Dixie.”

Abraham Lincoln ran into many Constitutional issues during his attempt to preserve the Union during the American Civil War. His suspension of habaeus corpus in Maryland was the most infamous early on – though it was later retroactively approved by Congress, based on a very real threat that secessionists posed to the nation’s capital. Lincoln later had issues with multiple Union generals trying to restrict unfavorable press or reporting, including General Sherman, whose hatred of the press was infamous and unlimited. There were almost no restrictions on the freedom of the press throughout the Civil War, resulting in military secrets often and quickly being published in major papers – though usually too late for the Confederacy to exploit them. There was one controversy, though, that hits at our theme today.

One of Lincoln’s loudest political opponents during the Civil War was Ohio politician Clement Vallandigham, an anti-war Democrat who blamed abolitionists for starting the Civil War and claimed that Lincoln was a tool of the capitalists and “Negro-lovers.” In a prominent speech on May 1, 1863 in Mount Vernon, Ohio, he claimed that “King Lincoln” was fighting a war “for the freedom of the blacks and the enslavement of the whites.” The Chicago Times, an anti-war newspaper, gleefully reprinted Vallandigham’s speech.

Vallandigham was about to run afoul of the military. General Ambrose Burnside, commanding the military department that encompassed Ohio, had issued General Order No. 38 on April 13, 1863, which stated that “The habit of declaring sympathies for the enemy will no longer be tolerated in the department.” Under this order, Burnside’s troops arrested Vallandigham on May 5; Vallandigham’s supporters responded by rioting and burning a rival newspaper office. Burnside also suppressed the Chicago Times. At Vallandigham’s trial, Burnside alleged that the politician’s speech “could but induce in his hearers a distrust of their own Government” and “sympathy for those in arms against it.” The case eventually made its way to a federal circuit court, where Judge Humphrey Leavitt agreed with Burnside, stating that military authority was necessary in time of war to protect the Constitution from overthrow by its enemies.

Burnside’s arrest of Vallandigham triggered widespread protest among fellow Democrats in the North. Lincoln – who wanted to avoid making the man a martyr – instead had the Ohioan sent into Confederate territory. Vallandigham later made his way to Canada, where he ran for Governor of Ohio in absentia and lost. Whether or not Vallandigham HAD been a threat, after his exile he certainly BECAME one, conspiring with Confederate agents to attempt a Midwestern secession that ultimately came to nothing. Vallandigham was never imprisoned or acquitted, and later killed himself while trying to demonstrate how dangerous a firearm was in a courtroom. (He won his case, though maybe not the way he wanted.)

Vallandigham’s case, again, never got a real hearing before the Supreme Court. In retrospect, it is clear that Vallandigham’s speech – though inflammatory and opposed to a very noble cause – was not dangerous to the United States or the Union cause. Lincoln used the legal uncertainty to get rid of a troublesome agitator, but almost certainly overstepped his powers in doing so. While the military order never got a real workout (Vallandigham was its only victim), Leavitt’s conclusion on the case was troubling: could anyone speaking out against a war really be considered an enemy?

If you think the answer is “no,” whoo boy are you not prepared to hear about World War I.

The years 1910-1960 were probably the nadir of free speech in America, especially free speech in wartime. The authoritarian political climate, the violence of politics, World War I, and the “Red Scare” that promised communists and anarchists behind every corner basically whipped the American political structure into a frenzy. The Espionage Act of 1917 was the major violator. This law, intended to prevent interference with military operations and recruitment, keep discipline in the military, and prevent overt aid to American foes, ended up being the cudgel that the federal government used to beat its opponents. Especially socialists. Almost always socialists.

Hundreds of prosecutions followed the passage of the Espionage Act, targeting anyone and everyone who spoke out publicly or agitated against American involvement in World War I. The most famous case by far emerged from Philadelphia. Charles Schenck and Elizabeth Baer, members of the Socialist Party in Philadelphia, had produced a number of leaflets encouraging Americans not to submit to the military draft, declaring it a violation of their rights. The argument was that the military draft constituted involuntary servitude, prohibited by the 13th Amendment. Schenck and Baer were arrested for distributing these leaflets and convicted of violating the Espionage Act. They appealed to the United States Supreme Court, arguing that this law was a violation of the First Amendment.

In one of the most important (and disputed) cases in Supreme Court history, the Court ruled unanimously AGAINST the convicted socialist in “Schenck vs. United States (1919)”. Oliver Wendell Holmes, Jr. – who survived the Battle of Antietam when the chaplain thought he would die, as I mentioned last month – wrote the majority opinion. Holmes argued that the First Amendment did not protect speech that encouraged men to resist the draft, since "when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." Did you catch that? You have less rights during war than you do during peace. But wait! There’s more.

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

This, this right here, is one of the most often quoted and most often misunderstood phrases in American political dialogue. The “shouting fire in a crowded theater” clause is everyone’s favorite go-to lingo when discussing how the First Amendment is not absolute. The other phrase that should not escape our notice is “clear and present danger.” In 1919, this phrase became the new standard for what speech is protected and what speech is not: speech that constitutes a “clear and present danger” is not protected, and since wartime is a time of greater danger, that standard varies based on whether the country is at peace or war.

Who gets to decide what “clear and present danger” is? Why, the government, of course. Isn’t that peachy. It appears that Holmes realized his mistake, and started to back off from this strong opinion in later Supreme Court cases. Because the Espionage Act, and the new Schenck standard, got a WORKOUT in the early 1920s. People were being arrested all over the place for speaking out against war or, increasingly, anything at all. Also in 1919, the Court upheld an Espionage Act conviction of a journalist who had criticized American involvement in World War I. The famous political activist Eugene Debs criticized the arrest of several friends who had failed to register for the draft; he too was convicted. Men in New York who distributed leaflets criticizing Wilson’s intervention in the Russian Revolution, also convicted.

With the Schenck standard in hand, free speech was under a cloud throughout the 1920s and 1930s. While Justice Louis Brandeis often argued in his dissents that political speech should be protected more broadly, the Court continued to deny Free Speech cases throughout the period, especially when directed at political leftists. The labor movement in particular commonly ran afoul of the Court.

In 1940, Congress passed the Smith Act, which made it illegal to even talk about overthrowing the United States government. This was used as a free-for-all to go after Communist leaders – after all, merely being a Communist meant you wanted to overthrow the government. In 1951, Eugene Dennis’s conviction merely for trying to organize a Communist Party was upheld by the Court (Dennis v. United States, 1951), and Chief Justice Fred Vinson once again invoked the “clear and present danger” clause. So wait, even organizing a party the government doesn’t like is now a clear and present danger?

Do you see how dangerous this can get? Let’s get to the draft card, and end the story on a happy note.

You may have heard that the Vietnam War was unpopular. Large-scale protests against the Vietnam War had already erupted in the early 1960s, and soon the Vietnam protest movement became increasingly flamboyant and demonstrative. One of the most popular forms of public protest was the burning of a draft registration card as a way of protesting the United States military’s involvement in the war. On August 31, 1965, Congress passed an amendment to the Selective Service Act that included a penalty for anyone who “knowingly destroys” their draft-card. Senator Strom Thurmond of South Carolina described draft-card burning as representing “a potential threat to the exercise of the power to raise and support armies.” Sound familiar? Same logic used against any kind of draft protestors.

On October 15, 1965, David J. Miller publicly burned his draft card in Manhattan. Miller was not a communist, but instead part of the nonviolent and antiwar Catholic Worker Movement. Nevertheless, Miller was arrested three days later, became the first person convicted under the new law, and was sentenced to 30 months in prison for burning a piece of paper. While his lawyers argued that it was symbolic speech, the Court of Appeals denied this line of reasoning. Miller would not get his case to the Supreme Court – but another peace protester, David Paul O’Brien, would.

The Supreme Court heard its big draft-card burning case in “United States v. O’Brien, 1968.” This was a landmark case for a few reasons. On the one hand, the Court upheld the new law, fearing that draft cards would interfere with Congress’s power to “raise and support armies” under Article I. However, in their decision, the Court imposed a new test for regulation that limited speech. The new test, known as the “Warren test” for Chief Justice Earl Warren, held that the restriction had to be 1.) within the government’s power, 2.) further an important government interest, 3.) be unrelated to the suppression of the speech, and 4.) prohibit no more speech than necessary. Unless the government could meet ALL four criteria, the law would violate the First Amendment, but Warren argued that the anti-draft-card burning law met all four. (It wasn’t related to the “suppression of the speech,” since the law was about the manner of the speech, not its content.)

Reasonable people can disagree with Warren, but this is one of the most important free speech court cases of modern times. The O’Brien case made any future government actions against free speech very, very difficult to get past the Supreme Court. In fact, O’Brien was the turning point in free speech laws during wartime. A year later, in “Brandenburg v. Ohio (1969)” the Court overturned the old “clear and present danger” clause, ripping out the heart of the Schenck (1919) and Dennis (1951) rulings, which are largely obsolete today. Instead, the Supreme Court said that the state could no longer violate speech based on how dangerous it was, but on whether it “is directed to inciting or producing imminent lawless action.”

Basically, it’s now ok to call for the overthrow of the government in general. But it is NOT ok to stand outside the state courthouse and order your followers to go attack the courthouse. Or, say, to plan to kidnap a governor. (For instance.) While this is still not 100% free speech, it’s a big step from “organizing a Communist Party is a clear and present danger.”

And…that’s where the Court stands today. The draft-card law is still on the books, but no one exactly carries their draft card around anymore since the draft hasn’t been around since 1973, so the point is moot. You can’t be arrested for protesting a war anymore. You can’t be arrested for writing an article against the President. You can’t be thrown in prison for telling people they shouldn’t join the military. Say what you will about modern America, but in terms of free speech, we have come a long way.

And now to my central pet peeve. Schenck (1919) is no longer case law. That means you can all STOP saying “you can’t shout fire in a crowded theater.” Of course you can. What if there’s a fire? But more importantly, that line comes from a case where a man peacefully protesting the draft was thrown in jail. It’s not a good look. Stop saying it.

If you think we aren’t better off now in this case, imagine your worst political enemy with the old laws in hand. That should make you shudder.

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