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Two score and ten years ago: free speech and civil liberties in these uncivil times
By Henry H. Bucher, Jr., Associate Professor Emeritus of Humanities, Austin College
Aug 22, 2017
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Half a century ago, when the USA’s involvement in Vietnam was increasingly challenged, the American Civil Liberties Union (ACLU) supported suits against the Selective Service System, which was then run by General Lewis Blaine Hershey. The general reclassified some men of conscience, who were not eligible for the draft, to 1-A status when they spoke out against Vietnam. Many men mailed their draft cards to the Department of Justice, or mailed them through trusted clergy such as Yale Chaplain William Sloane Coffin. The draft boards of each man ordered him to report immediately for military service.

In 1967, the ACLU, the Law Center for Constitutional Rights, and others interpreted the government’s action as punishing free speech, and accepted the task of defending potential draftees based on the ACLU’s long-standing commitment to the First Amendment, not to any political biases. Fast forward half a century to 2017, when various right wing groups organized their “Unite the Right” march in Charlottesville, Virginia (August 11-13), the issue was not their right to assemble, but the unusual preparations some of the “far right” groups had made for violent confrontations, which did happen.

The ACLU has always defended the right of everyone to free speech. In the 1970s, the ACLU defended the right of neo-Nazis to march in Skokie, Illinois, some of whose citizens were survivors of the Nazi Holocaust during World War Two. The case went to the Supreme Court which sided with the ACLU and the neo-Nazis’ right to free speech.

In the 1967 cases when the ACLU defended the Vietnam protestors’ right to non-violently return their draft cards as a form of free speech protest, many of the cases left President Richard Nixon and General Hershey stunned because the ACLU’s opinion prevailed up to the Circuit Court level. At the time, many citizens assumed that these protestors were simply performing a variation of the then-popular burning of draft cards.

Nixon and Hershey advanced these cases to the Supreme Court, expecting victory; but the Court refused to hear them, thus assuring that the Circuit Courts’ decisions prevailed. President Nixon removed General Hershey from running the Selective Service System and placed him in a higher position. Nixon   continued with his “secret plan” to win in Vietnam.

ACLU’s James Esseks is clear after Charlottesville on the necessity of protected speech:      “Without free speech protections, all civil rights advocacy could be shut down by the people in power, precisely because government doesn’t agree with the ideas activists advance. That was true of the civil rights fights in the past, it’s true of the movements facing pitched battles today, and it will be true of the movements of the future…”

Ultimately, will it be “the people in power” or the voters of this country who will decide, through reasonable discourse, deliberation and creative non-violent debate what path to follow? Can the “marketplace of ideas” combined with reasonable debate, and the ideals we cherish reach an honorable goal? More likely we will have to settle for an honorable and workable process that will protect civil liberties for all, yet not allow the promotion of incivility. Legally, our Supreme Court is the final arbiter; but what it ruled in the past has changed significantly with changing times, and may change again. Many questions remain. What is extremist content? Is a death threat “free speech” until it is carried out? Who decides what is good and what is evil? As of August 18, the ACLU will no longer defend armed hate groups.

The Boston Police acted correctly in separating opposing sides in the August 18-20 marches. When antagonist face each other, two outcomes are assured: First, there will be some violence; second, each side will claim they were “retaliating” to the other’s first strike. One positive outcome of recent events is a group called “Life after Hate,” formed specifically as a support group for former members of the radicalized right in the USA, and as a group committed to convince others that hate is not the answer.

{Full disclosure: The author of this op-ed was deeply involved with the ACLU and the Law Center for Constitutional Rights in Bucher, et al versus Selective Service System initiated in 1967 and decided by the Third Circuit Court of Appeals on January 2, 1970. Other successful suits followed the mailing of our draft cards (none of us were of 1-A status) in 1967 to Reverend William Sloane Coffin, Chaplain at Yale, who took them to the Department of Justice. For more information, see Mitchell K. Hall, Because of Their Faith: CALCAV and Religious Opposition to the Vietnam War (Columbia University Press) 1990}