It is common knowledge that free speech has legal limits in the public square. What may be less well known is that the famous Supreme Court ruling — refusing protection for “falsely shouting fire in a theater” — dealt with opposition to World War I and the military draft. The case centered on Charles Schenck and Dr. Elizabeth Baer, Philadelphia socialists, who distributed 15,000 copies of a leaflet titled “Long Live the Constitution of the United States,” arguing that conscription was illegal. Coming three months after President Woodrow Wilson signed a bill creating a military draft, the leaflet said conscription was a clear violation of the 13th Amendment banning involuntary servitude.
If you stand back just far enough, history repeats itself. And we might just learn something from the outlines. The lesson comes from the Vietnam War. On January 30, 1968, during the Vietnamese New Year festival, approximately 85,000 combatants from the National Liberation Front (the so-called “Viet Cong”) and North Vietnam staged a surprise attack all across South Vietnam. The scale and the audacity of the campaign was unprecedented. But more than that, it was the surprise element that stood out. The offensive targeted over 100 locations, including cities, towns and military installations, and the capital of South Vietnam, then known as Saigon, hitherto immune from large-scale fighting.
The radicalism of the 1960s did not fall from the sky—it was built by the uncommon bravery of common people. One of those people was Staughton Lynd, a professor who accompanied movements for justice as a scholar, lawyer, and activist throughout his life. A conscientious objector to the Korean War, Staughton went on to join the Civil Rights Movement and oppose the Vietnam War through his scholarship and his actions. He passed away in Nov. 2022 just days before his 93rd birthday. A collection of his writings and speeches, My Country Is the World, was recently published by Haymarket Books.
Few people can say their actions helped to strengthen press freedom, end a war, and bring down a presidency. Daniel Ellsberg, who died today at the age of ninety-two, did just that. Ellsberg came to public prominence in 1971 when he photocopied a secret history of US involvement in the Vietnam War, what became known as the “Pentagon Papers,” and gave a copy to the New York Times. The New York Times’ decision to publish the papers set off a landmark press freedom battle that went all the way to the Supreme Court. Ellsberg became the first whistleblower indicted under the Espionage Act.
A navy warship was waiting for us when our sailing ship Phoenix came close to Da Nang, South Vietnam. It was October 1967, during a recently-escalated hot war in Vietnam. The 50-foot ketch-rigged Phoenix was loaded with medical supplies for civilians wounded by the U.S. war. I’d already been to the South Vietnamese capitol of Saigon, now named Ho Chi Minh City, in order to negotiate this trip with the government. We weren’t surprised that warships would be looking out for us. The surprise was the word from Vietnamese officials when they came up next to us. “Turn around and go back to Hong Kong,” they said. “Your visas are no longer valid; your mission is denied.” I quickly convened a meeting of our crew to decide what to do.
It was appropriate today, as we mark the national holiday for Martin Luther King Jr.’s birthday, to re-read ‘A Time to Break the Silence,’ his most powerful speech, given on April 4, 1967, just a year before his tragic murder in Memphis. It is a speech that stands the test of time; much of it is as relevant today as it was in 1967, when war was raging in Vietnam. I would urge people to read or listen (link above) to that profound and prophetic speech in its entirety. He said, “There is nothing except a tragic death wish to prevent us from reordering our priorities so that the pursuit of peace will take precedence over the pursuit of war.” With climate catastrophe and nuclear madness moving at a rapid rate towards a potential apocalypse for all humanity, King’s words resonate with, as he said, “the fierce urgency of now.”
Decades after the end of the Vietnam War, the impact on both Vietnam and the United States is still felt. Yet few Americans are aware that the conflict, which killed several million people, ended in large part thanks to the anti-war movement made up of, among others, 570,000 Americans that refused to be drafted to fight a war that many saw as immoral even then. Among those, 3,250 draft resisters–many of whom considered themselves conscientious objectors–were punished with up to five years in prison, including the anti-war activist and journalist David Harris. These valiant young men from a wide range of social classes are the subject of the documentary “The Boys Who Said No,” directed by Judith Ehrlich, who joins Robert Scheer on this week’s “Scheer Intelligence” to discuss her film.
On Sunday, 15 August, Afghanistan’s President Ashraf Ghani fled his country for Uzbekistan. He left behind a capital city, Kabul, which had already fallen into the hands of the advancing Taliban forces. Former President Hamid Karzai announced that he had formed a coordination council with Abdullah Abdullah, the head of the National Reconciliation Committee, and jihadi leader Gulbuddin Hekmatyar. Karzai called on the Taliban to be prudent as they entered Kabul’s presidential palace and took charge of the state. Karzai, Abdullah Abdullah, and Hekmatyar have asked for the formation of a national government. This will suit the Taliban, since it would allow them to claim to be an Afghan government rather than a Taliban government.
My gut was tight as a knot. The oral arguments began before the Supreme Court on April 19, 1972. I fidgeted in my seat in the audience in the first row with my wife and two young kids. I could see our legal team sitting in front of me: Robert Reinstein and Chuck Fishman. A young Alan Dershowitz sat next to them, representing Beacon. Twenty-four Ionic columns of Italian marble surrounded us below white friezes encircling the chamber. I gazed up at the Justices arrayed in black high before me on their imposing, mahogany bench, under a 44-foot ceiling. Behind them were red satin curtains and four marble columns. A huge black and white clock hung from above. Two new Justices had joined the Court since the New York Times ruling: Hugo Black and John Harlan left in September 1971.
I propped myself up on an elbow as the announcer read the news: The Supreme Court ruled, 6-3, against Nixon. The government’s unprecedented move to stop the presses had failed. The Court agreed with two lower courts that the attempt to impose prior restraint on the press was unconstitutional. The ruling turned out to be more complex than at first glance, but it was an unequivocal call for Constitutional constraint on an out-of-control control executive. The Court challenged the executive’s misuse of “national security” as a mantra to undermine the Bill of Rights and accrue quasi-dictatorial powers. Writing for the majority, Justice Hugo Black boldly took on Nixon’s nonsense: “To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’
Some scholars believed that, had FDR lived, there may have been no Vietnam War for either French or American troops. But the Pentagon Papers revealed, through access to State Department, Central Intelligence Agency and Defense Department classified material, that though Roosevelt “vehemently advocated” a trusteeship and ultimate post-war independence for Vietnam, Britain, which occupied Indochina after the war, would not allow it. “Ultimately, U.S. policy was governed neither by the principles of the Atlantic Charter, nor by the President’s anti-colonialism but by the dictates of military strategy and by British intransigence on the colonial issue,” I read. I went on with the Truman years, reading how Harry had rebuffed Ho in a disastrously stupid foreign policy decision.
The Vietnam War is one of many heinous stains on American history that to this day often is told through a revisionist lens or outright ignored. Yet the truth remains beneath the layers of whitewashing that the U.S. government sent thousands of Americans to slaughter and be slaughtered over a conflict that had everything to do with Cold War ideologies and nothing to do with justice or freedom. The death tolls are still shocking to read: it is estimated that 2 million Vietnamese civilians were killed during the war, along with 1.1 million North Vietnamese and Viet Cong fighters and 58,220 American soldiers. The conflict also inspired an anti-war movement described as “one of the largest and most successful youth-led resistance movements in American history” in the 2020 film “The Boys Who Said NO!”