U.S. DRAFT LAWS NOTED PEDIATRICIAN ON CONSPIRACY INDICTMENT

Press, Volume CVIII, Issue 31588, 27 January 1968, Page 12

U.S. DRAFT LAWS NOTED PEDIATRICIAN ON CONSPIRACY INDICTMENT

(Bu

FRED P. GRAHAM

in the “New York Times")

(Reprinted by arrangement)

Dr Benjamin Spock, a pediatrician who views the illnesses and aggravations of child-rearing with fatalistic aplomb, spoke with some resignation last week about his own legal prognosis. ‘‘You can be sure that we’re going to fight this through to the last resort, he said, referring to the Government’s indictment against him and four other men on January 5 for conspiring to persuade young men to violate the draft laws.

*-h U u if 1 and the . otliers ,ose in the end, and I have to go to gaol, that will be a small price to pay for having expressed my opinion as strongly as I could.”

As unlikely as it might have seemed before the indictment that the nation’s best-known baby-doetor would be seriously discussing the prospect of going to prison, it is not fanciful now. For the law books are sprinkled with the cases of people who have been sent to gaol for advising others to evade the draft, and the Government’s case against Dr Spock and his co-defendants appears stronger than most of them. In The Open The underlying reason is that Dr Spock and his codefendants, a Yale University chaplain, the Rev. William Sloane Coffin Jun., the author, Mr Mitchell Goodman, disarmament expert Mr Marcus Raskin and a graduate student Mr Michael Ferber, made no effort to hide their anti-draft activities. Some of them said they were deliberately violating the law as a form of antiwar protest. When Mr Coffin left a batch of draft protesters’ selective service cards at the Justice

: Department last October (an act he said was illegal because the registrants are required to carry them at all times), he demanded a “moral, legal confrontation” with the Government over the Vietnam war. The upcoming trial in Boston will undoubtedly be a moral confrontation, because these men are not criminals in the accepted sense, yet they chose to violate the law as a means of opposing the war. But as a legal confrontation, the Spock case appears at this stage to be exceedingly one-sided. Conspiracy Charged The men are charged with conspiring to violate a section of the Selective Service Act of 1940 that makes it a felony, punishable by up to five years in prison, to hinder the administration of the draft or to counsel or aid and abet a draft registrant to violate his duties under the draft law. Previously, opponents of the draft were prosecuted under a similar provision of the Espionage Act of 1917. Using either Jaw, the Government has fared very well.

It gaoled Eugene V. Debs and other officers of the Socialist party for encouraging draftees to oppose the World War I draft. In World War 11, a man was convicted for advising his stepson to flee the country to avoid service, and leaders of a Negro group were imprisoned for urging Negroes not to fight the Japanese. During the Korean war, Mr Larry Gara, dean of men at Bluffton College, Ohio, was convicted after he told a student: “Do not let them coerce you into registering.” In the last prosecution of this type before the Spock case, a woman was found guilty in 1954 after she counselled nine men to reject the peacetime draft. Explaining Away This is an impressive batting average for the Government, considering that the convictions all came in the teeth of the free speech guarantee in the First Amendment to the United States Constitution. The reason is that the Supreme Court explained the First Amendment away in its first draft-protest case, the landmark Schenck v. United States decision of 1919. The defendants had been convicted for mailing circulars to draftees; urging them to resist induction. Writing for a unanimous Supreme Court, Justice Oliver Wendell Holmes ruled that the First Amendment did not protect Schenck because there was a “clear and present danger” that his circulars would per-

suade the draftees to break the law. “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,” Justice Holmes wrote. “No court could regard them as protected by any constiutional right” In more recent years, the Supreme Court has taken a less mushy view of the First Amendment, but even that trend may not help the defendants in the Spock case, because the Government lawyers took care to stress in the indictment the acts of collecting and turning in the draft cards. Under present law, acts of protest are not protected by any constitutional right.” One glimmer of hope for i the defendants is the appeal I now before the Supreme Court that challenges the con- | stitutionality of the new law against draft-card burning. “Symbolic Speech” | If the Supreme Court were to hold that draft-card burning is “symbolic speech” that is protected by the First Amendment, then the Spock defendants could claim that their dealings in others’ draft cards were also a protected form of dissent. Since the defendants sought a "legal confrontation,” they will undoubtedly try to raise a number of legal issues concerning Vietnam—that no war has been declared, that draftees could be held guilty of crimes for participation in it, and that the war may violate some United States treaties. But the courts have consistently refused to hear these defences when they are raised by young men who refuse induction, so they are unlikely tc hear them from persons who are not themselves being (asked to fight. Indeed, the circumstances suggest that Dr Spock either did not think he would be arrested or felt so strongly that his moral position was right that he would not stop to conceal possible incriminating evidence. Last month he was quoted as saying that “the Government is not likely to prosecute us” because of “its bankruptcy in the moral sense.” Copyright 1968. “New York Times” News Service.