Danver Steven L. (Edited). Revolts, Protests, Demonstrations, and Rebellions in American History: An Encyclopedia (ENG)
Подождите немного. Документ загружается.
Aldrich, Chief Judge.
These are appeals by four defendants convicted under a single count indictment for
conspiracy. We reverse.
As is well known, the war in Vietnam and the draft to support it have engendered
considerable animosity and frustration. In August 1967 a number of academi c, clerical,
and professional persons discussed the need of more vigorous opposition to governmen-
tal policies. From their eventually consolidated efforts came a document entitled “A Call
to Resist Illegitimate Authority. ...”
Inseparable from the quest ion of the suffic iency of the evi dence to convi ct are the
rights of the defendants, and others, under the First Amendment. We approach the con-
stitutional problem on the assumption, which we will later support, that the ultimate
objective of defendants’ alleged agreement , viz., the expression of opposition to the
war and the draft, was legal, but that the means or intermediate objectives encompassed
both legal and illegal activity without any clear indica tion, in itially, as to who intended
what. T his intertwining of legal and illega l aspect s, the pu blic se tting of th e agreem ent
and its political purposes, and the loose confederation of possibly innocent and possibly
guilty participants raise the most serious First Amendment problems.
In comparing the present private and public interests we start with the assumption
that the d efendants were not to be prevented from v igorous criticism of the govern-
ment’s program merely because the natural consequences might be to interfere with it,
or even lead to unlawful action. Thus Bond v. Floyd held that the First Amendment pro-
tected an expression of “sympathy ...and support [for] the men in this country who
are unwilling to respon d to a mili tary draft.” The Court said, with specific reference to
[the Universal Military Training and Service Act of 1967], “[T]his statement alone cannot
be interpreted as a call to unlawful refusal to be drafted.” The defendants here are not
charged, however, with expressions of sympathy and moral support, but with conspiring
to counsel, aid and abet Sele ctive Service registrants to disobey various duties imposed
by the Selective Service Act. The maintenance of an army in peacetime is a valid, in fact
vital, governmental function. If a registrant may be convicted for violation of the draft
laws, surely “[a] man may be punished for encouraging the commission of [the] crime.”
The government’s ability to deter and punish those who increase the likelihood of
crime by concerted action has long been established. Restricting it to punishment of sub-
stantive violations ignores the potency of conspiratorial conduct; to wait for the substan-
tive offense may be to wait too long. Congress has a right to prefer regis trants to
felons. ...
Despite the validity of the government’s present interest, the de fendants were enti-
tled under the cases to certain protections before they could be convicted of conspiracy
in what we might call a bifarious undertaking, involving both legal and illegal conduct. ...
When the alleged agreement i s both bifarious and political within the shadow of the
First Amendment, we hold that an individual’s specific intent to adhere to the illegal por-
tions may be shown in one of three ways : by the individual defendant’s prior or sub-
sequent unambiguous statements; by the individual defendant’s subsequent commission
of the very illegal act contemplated by the agreement; or by the individual defendant’s
958 Antiwar Movement (1960s–1970s)
subsequent legal act if that act is “clearly undertaken for the specific purpose of
rendering effective the later illegal activity which is advocated.”
Application of such a standard should forcefully answer the defendants’ protests that
conviction of any of them would establi sh criminal responsibility of all of the many hun-
dreds of persons who signed the Call. Even if th e Call included illegal objectives, there
is a wide gap between signing a document such a s the Call and demonstrating one’s
personal attachment to illegal ity. Of greater importance, it responds to the legitimate
apprehension of the amicus that the evil must be separable from the good without
inhibiting legitimate association in an orderly society.
At the same time, this principle demonstrates a fundamental e rror in the govern-
ment’s approach. Adopting the panoply of rules applicable to a conspiracy having purely
illegal purposes, the government introduced numerous st atements of third part ies
alleged to be co-conspirators. This was improper: The specific intent of one defendant
in a case such as this is not ascertained by reference to the conduct or state ments of
another even though ha has knowledge thereof. ...
The principle of strictissimi juris requ ires the acquittal of Spock. It is true that he was
one of the drafters of the Call, but this does not evidence the necessary intent to adhere
to its illegal aspects. Nor does his admission to a government agent that he was willing to
do “anything” asked to further opposition to the war. Specific intent is not established by
such a generalization. Whatever the reason the fact is that his speech was limited to con-
demnation of the war and the draft, and lacked any words or content of counseling. The
jury could not find proscribed advocacy from the mere fact , which he freely admitted,
that he hoped the frequent stating of his views migh t give young men “courage to take
active steps in draft resistance.” This is a natural consequence of vigorous speech.
Similarly, Spock’s actions lacked the clear character necessary to imply specific intent
under the First Amendment standard. ...
The verdicts are set aside, and the judgm ents vacated. Judgments are to be entered
for the defendants Spock and Ferber, and a new trial is ordered for defendants Goodman
and Coffin.
APPENDIX
A Call to Resist Illegitimate Authority
To the young men of America, to the whole of the American people, and to all men of
good will everywhere:
... 5. Therefore, we believe on all these grounds that every free man has a legal right
and a moral duty to exert every effort to end this war, to avoid collusion with it,
and to encourage others to do the same. ...Each must choose the course of
resistance dictated by his conscience and circumstances. Among those already in
the armed forces some are refusing to obey specific illegal and immoral orders,
some are attempting to educate their fellow servicemen on the murderous and
barbarous nature of the war, some are absenting themselves without official leave.
Among those not in the armed forces some are applying for status as
conscientious objectors to American aggression in Vietnam, some are refusing
Antiwar Movement (1960s–1970s) 959
to be inducted. Among both groups some are resisting openly and paying a heavy
penalty, some are organizing more resistance within the United States and some
have sought sanctuary in other countries.
6. We believe that each of these forms of resistance against illegitimate authority is
courageous and justified. Many of us believe that open resistance to the war and
the draft is the course of action most likely to strengthen the moral resolve with
which all of us can oppose the war and most likely to bring an end to the war.
7. We will continue to lend our support to those who undertake resistance to the
war. We will raise funds to organize draft resistance unions, to supply legal defense
and bail, to support families and otherwise aid resistance to the war in whatever
ways may seem appropriate.
8. We firmly believe that our statement is the sort of speech that under the First
Amendment must be free, and that the actions we will undertake are as legal as is
the war resistance of the young men themselves. ...
9. We call upon all men of good will to join us in this confrontation with immoral
authority. Especially we call upon the universities to fulfill their mission of
enlightenment and religious organizations to honor their heritage of brotherhood.
Now is the time to resist. ...
Source: 416 F.2d 165 (1st Cir., 1969).
A Father’s Disgust with Antiwar Demonstrations (1970)
When President Richard Nixon announced the American invasion of Cambodia in April 1970, a
new wave of protests and demonstrations against the war in Southeast Asia spread across
American campuses, culminating in the death of four students shot by National Guardsmen
during a demonstration at Kent State University. Reproduced here are excerpts from a letter
written at the time by Dr. Paul Williamson of McComb, Mississippi, t o his so n, who was about
to enter Tulane University in New Orleans. Williamson expresses the anger and frustration that
many older Americans felt toward the ongoing antiwar protests and demonstrations by students.
Dear Nathan:
Of course, you know that your mother and I love you deeply. There are limits to that
love. Let me discuss one with you today.
You are going to Tulane. We are proud and happy for you. There are, however, awk-
ward things that must be discussed. College kids over the nation are “protesting.”
They use may beautiful phrases. What it often amounts to is a contest with the duly
constituted authorities of the United States government. The only term that could apply
is revolution. People are quite rightly shot in revolutions.
960 Antiwar Movement (1960s–1970s)
I suppose there is the legal differentiation between a peaceful demonstration and
breaking windows. One graduates into the other by such indifferent degrees it is difficult
to say where one ends and the other begins.
The duly constituted authoriti es have been merciful beyond belief—far too merciful,
I think—with students. Obviously, this patience is nearing an end. ...I have seldom heard
of a student being shot at his study desk. When he goes in the open and contests the
ground with the National Guard, he may very likely be shot—and very rightly. ...
It m ay sound like great martyrdom to give your life for an ideal. Indeed, it may be
when you are old enough to judge ideals. Trying to whip the National Guard or the Army
appeals to me as damned foolishness. ...I have been shot and it hurts like hell. It’s funny,
but you don’t think of ideals over the pain.
Now use your head, son. Remember this country is getting tired of student demon-
strations which lead to revolution. The Na tional Guard can shove in a couple of clips
and clean Tulane. I think they ought to when students disturb the peace and destroy
property.
One thing of which you have probably not thought: Tulane is a nonprofit corporation
belonging to the public, which means one brick is yours. The National Guard is a public
organization, which means that one bolt on one rifle may have been paid for with
your tax.
It seems awfully foolish for you to pay for the bolt that snaps the cartridge home
which kills you. It seems even more foolish to tear down the bricks you own.
When I went to Oklahoma City University, I always thought o f it as my universit y.
Ann and I probably own one bit of cement between the bricks. Believe me, sir, I was very
careful of that bit of cement.
I, too, had ebullient spirits but I used them for more practical purposes.
Have you ever considered how many c o-eds there are to be kissed? T his is a much
more worthy purpose than absorbing a bullet and not nearly so painful.
Think of these things.
Love,
Dad
Source: Harrison Salisbury, ed., The Eloquence of Protest: Voices of the 70s (Bost on:
Houghton Mifflin, 1972), 27–28.
Displaying the Flag on the Seat of His Pants: Excerpts
from Smith v. Goguen (1974)
In January 1970, a man in Leominster, Massachusetts, was charged under a Massachusetts flag-
misuse statute with contempt of the American flag for wearing it sewn unto the seat of his blue
jeans. The case was one of many that came to the courts in the 1960s and 1970s regarding
dress and grooming styles that arose out of the counterculture and antiwar movements. In these
excerpts from the 1974 U.S. Supreme Court decision in Smith v. Goguen, the case that arose
Antiwar Movement (1960s–1970s) 961
out of the 1970 Leominster incident, Justices Powell and White find the Massachusetts law too
vague and overbroad to be uphel d. The decision reinforces the notion that government cannot
compel people to adopt or express a pa rticular idea or attitu de. Smith v. Goguen was among
the last cases of this kind arising out of the antiwar movement to come before the Court.
Mr. Justice Powell ....
The slender record in this case reveals litt le more than that Goguen wore a small
cloth version of the United States flag sewn to the seat of his trousers. The flag was
approximately four by six inches and was displayed at the left rear of Goguen’s blue jeans.
On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen
bedecked in that fashion. The first officer encountered Goguen standing and talking with
a group of persons on a public street. The group apparently was not engaged in any dem-
onstration or other protest associated with Goguen’s apparel. No disruption of traffic or
breach of the peace occurred. When this officer approached Goguen to question him
about the fl ag, the othe r persons present laughed. Some time later, the second officer
observed Goguen in the same attire walking in the downtown business d istrict of
Leominster.
The following day the first officer swore out a compl aint against Goguen under the
contempt provisi on of the Massachusetts flag-misuse statute. The relevant part of the
statute then read:
Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the
flag o f the United States ..., whether such flag is public or private property...,
shall be punished by a fine of not less than ten nor more than one hundred dollars
or by imprisonment for not more than one year, or both....
Despite the first six words of the statute, Goguen was not charged with any act of physi-
cal desecration and contempt, the officer charged specifically and only that Goguen “did
publicly treat conte mptuously the flag of the United States” ...[Goguen was convicted
and sentenced to six months’ imprisonment.]
***
...Where a statute’s liberal scope, unaided by a narrowing state court interpretation,
is capable o f reaching expression sheltered by the First Amendment, the doctrine
demands a greater degree of specificity than in other contexts. The statutory langua ge
at issue here, “publicly ...treats contemptuously the flag of the United States ...”has
such sco pe (verbal flag conte mpt), and at the relevant time was without the benefit of
judicial clarification.
Flag contempt statutes have been characterized as void for lack of notice on the
theory that “[w]hat is contemptuous to one man may be a work of art to another.”
Goguen’s behavior can hardly be described as art. Immaturity or “silly conduct” probably
comes closer to the mark. But we see the force of the District Court’s observation that
the flag has become “an object of youth fashion and high camp. ...” As both courts below
noted, casual treatment of the flag in many contexts has become a widespread contem-
porary phenomenon. Flag wearing in a day of relaxed clothing s tyles may be simply for
adornment or a ploy to attract attention. It and many other current, careless uses of
962 Antiwar Movement (1960s–1970s)
the flag nevertheless constitute unceremonial treatment that many people may view as
contemptuous. Yet in a time of widel y varying attitudes and tastes for displaying some-
thing as ubiquitous as the United States flag or representations of it, it could hardly be
the purpose of the Massachusetts Legi slature to make criminal every i nformal use of
the flag. The statutory language under which Goguen was charged, however, fails to draw
reasonably clear lines between the kinds of nonceremonial treatment that are cr iminal
and those that are not. Due process requires that all “be informed as to what the State
commands or forbids,” and that “men of common intelligence” not be forced to guess
at the meaning of the criminal law. Given today’s tendencies to treat the flag unceremo-
niously, those notice standards are not satisfied here.
Mr. Justice White, concurring in the judgment.
It is self-evident that ther e is a whole range of conduct that anyone with at least a
semblance of common sense would k now is contemptuous conduct and that would
be covered by the statute if directed at the flag. In these instances, there would be ample
notice to the actor and no room for undue discretion by enforcement officers. There
may be a variety of other conduct that might or might not be claimed contemptuous by
the State, but unpredictability in those situations does not change the certainty in others.
I am also confident that the statute was not vague with respect t o the conduct f or
which Goguen was arrested and convicted. It should not be beyond the reasonable com-
prehension of anyone who would conform his conduct to the law to realize that sewing a
flag on the seat of his pants is contemptuous of the flag.
[Justice White concurred in the judgment of reversal on the grounds that convicting
Goguen for treating the flag contemptuously was to punish him for communicating an
idea, a direct violation of the First Amendment.]
Source: 415 U.S. 566 (1974).
Antiwar Movement (1960s–1970s) 963
Watts Riot (1965)
On August 11, 1965, Marquette Frye was pulled over by California Highway
Patrol (CHIP) officer Lee Minikus for driving erratically. This was to be a routine
traffic stop, Minikus’s first action in the Watts section of Los Angeles that day. The
day was extremely hot—93 or 94 degrees—and Minikus was four hours into a
12-hour shift when a b lack man waved him down and indicated that Frye was
drunk. The stop quickly moved from routine. A crowd gathered, Los Angeles
Police Department (LAPD) officers came as backup, and Frye became increas-
ingly sour as his chances of beating the rap diminished. Frye’s brother, Ronald,
tried to talk the officers out of towing the car. T he crowd grew, and more police
backup came. One officer, Wayne Wilson, hit one of the Frye brothers after mis-
reading disgruntlement as potential violence. Just at that moment, the boys’
mother, Rena Price, arrived. After the cops handcuffed Marquette Fry, she jumped
onto Minikus’s back while her younger son was hitting Minikus. The police
arrested the Fryes and left.
The crowd remained. Anti-LAPD feeling was high. The police department had a
reputation as one of the finest but was in fact one of the most racist and brutal. The
police forces of the era recruited heavily among former military, wanting cops who
were tough guys and took no lip. There was no community relations effort until Chief
Parker died and a new regime took over. Although CHIP made the stop, and LAPD
was just backup, because there were so many LAPD officers, they became the targets.
Tommy Jacquette, a friend of Marquette, was in the riot or rebellion. He noted
that the police would break up the crowd and leave. Crowds would reform, and
the cops would come back. The LAPD sent 11 cars, three cops to a car, with a sin-
gle shotgun per car. They reentered at Avalon and Imperial streets, rescued a cou-
ple of people, and encountered a crowd throwing concrete and rocks. The police
moved the crowd out forcibly.
Retired police sergeant Joe Rouzan noted that it was summer and unemploy-
ment was high. A rumor spread that white officers had beaten a pregnant black
woman. The mob grew. Somebody shouted about police abuse. Somebody spat
on an officer. Police backup returned, left again, and returned. The bottles and
bricks were first thrown during the second or third time the police appeared.
Gabriel Pope hit a patrol car with a thrown bottle. The police abandoned a car,
the mob set it ablaze, and the riot was on.
965
Watts consisted of 54 square miles. Watts was 99 percent black with a few Hispanics
and Jewish store owners. Fifty-three of the 82 Los Angeles suburbs were 99 percent
white. Only 5 of the area’s 205 police officers were black. Many in the community
believed th at police practiced brutality, including exc essive force in arrests, racial
slurs, and rape of black women. One-eighth of Watts’s adults had less than a high
school education, and the area’s poverty and unemployment were the highest of any
neighborhood in Los Angeles. Unemployment in Watts was 30 percent.
The riots burned out 150 square blocks, damaging or destroying over 600 build-
ings. Ground zero was 103rd and Compton, “Charcoal Alley,” but the damage
spread rapidly to the main business areas, and white-owned buildings burned and
darkened the Los Angeles sky. The “riot” was actually a revolt against police bru-
tality and social exploitation, and the burning was not of the black community but
of the oppressors’ property. Blacks did not own most of the businesses and houses
in Watts. The mostly white-owned business districts were burned to the ground.
The national media regarded it as a “war zone.”
For five days, a mostly black mob ran through Watts, destroying about 1,000
businesses. The riot lasted 144 hours, with 10,000 people on the streets looting,
burning, and beating white passersby. Nearly 4,000 were arrested, 1,000 were hos-
pitalized, and 34 died, 25 of them black. Hundreds of families were homeless. The
cost was $40 million. The National Guard cordoned off South Los Angeles as far
966 Watts Riot (1965)
A group of African American women
step through rubble and demolished
storefronts on Central and Vernon
avenues where businesses were
destroyed and looted during the Watts
riots in Los Angeles, California, August
1965. (Hulton Archive/Getty Images)
east as Alameda Street and as far west as Crenshaw Boulevard from south of the
Santa Monica Freeway to near Rosecrans Avenue.
The rioters numbered between 31,000 and 35,000 adults, not necessarily all at
the same time or all full time. Another 70,000 perhaps were sympathetic, but not
active. Many of the rioters wanted the riots to bring attention to their pr oblems .
It was a political situation, not a mindless act of rage. The riots were not a break-
down of social order, an opportunity for the criminal element, as white and official
America perceived them in the immediate years after the events. Rather, they re-
present an uprising against an oppressive system by a black community becoming
self-empowered. This is the view held by a significant number of black Ameri-
cans; some whites, too.
Retired police sergeant Joe Rouzan recalled the black plain-clothes cops who
infiltrated Watts to see what was going on, particularly the first night and second
day and evening. When they arrived, the situation was chaotic, with people ran-
domly be ating others. One picked a ta rget, and others joined the beating. When
the fire department tried to work, the firemen had to withdraw for fear of being
attacked. The undercover cops mingled and tried to talk, t o no avail. Even black
leaders—including the churchmen—had no luck in calming the situation. The
argument that the rioters were destroying their own community had no resonance.
The riots had no center, no leaders, so there was no way to work a truce.
Aside from those drunk on the booze they looted, much of the chaos was
actually carefully focused. The first buildings to be burned were loan offices. Next,
came liquor stores. After that, the st ores that overcharged even by Watts’s highly
inflated standard. The final location for arson was a private home. Jacquette was
not interested in looting or arson; he was aiming bricks and bottles at the police.
Arrested, he got out on a promise to go home but went back to the street instead.
The rioters might have been furious at the c ops, but they were not so enraged
that they burned their own homes. In fact, as the arson and looting raged on busi-
ness streets, on the side residential streets the black residents continued to water
lawns, play with the kids, wash their cars, and sit on their porches. Even when
the occasional National Guard patrol came by in a machine gun–mounted jeep,
the residents ignored suggestions or stronge r language about going inside. On
undisturbed buildings in the burned-out Charcoal Alley were signs including
“Negro-owned,” “Let me eat brother,” and “Blood brother.”
More military and police were called in than had served in the Dominican inter-
vention of earlier in 1965. The National Guard called out 14,000 troops, 60 percent
of it s strength. The curfew zone was one and a half times the size of Manhattan.
Tanks and street fighting were necessary to reestablish order. Looting, rioting,
arson, vandalism, and sniping damaged, looted, or destroyed a thousand buildings.
In 144 hours, 34 people had died. The high number of fatalities came not from the
Watts Riot (1965) 967