The war in Vietnam became the focus of protests that resulted in government attempts to limit First Amendment protections mostly dealing with the right to assemble and what constituted appropriate free speech criticism of the war. Other challenges which made it to the Supreme Court concerned a law prohibiting the mutilation or burning of draft cards (upheld) and prior restraint on the press involving the publication of classified information (rejected, Pentagon Papers). Here, student protesters marched down Langdon Street at the University of Wisconsin-Madison during the Vietnam War era, January 1965. (Photo from UW Digital Collections, licensed under CC BY 2.0)
The Vietnam War was the product of Cold War dynamics between the United States and the Soviet Union. U.S. leaders defined the national interest as working toward the containment of Communist expansion globally and the prevention of the development of perceived Soviet surrogate states anywhere in the world. Vietnam was partitioned into North and South Vietnam as a result of international agreements and the creation of the Southeast Asia Treaty Organization, which established a military relationship between South Vietnam and the United States. These arrangements intensified the resolve of North Vietnamese leaders to pursue a strategy that would ultimately result in the unification of the two countries under Ho Chi Minh, the president of North Vietnam. U.S. strategy to prevent this included a chain of events that resulted in the 1964 Gulf of Tonkin Resolution that presidents used to justify U.S. military escalation in South Vietnam.
At the time of the assassination of President John F. Kennedy in 1963, U.S. military forces in Vietnam numbered less than 15,000. Under President Lyndon Johnson the numbers grew dramatically, and by 1966 more than 500,000 troops were deployed in the region. The war in Vietnam was the first to be televised, and broadcast reports showed coverage of the combat in which U.S. soldiers were taking part. This coverage, along with the nightly casualty reports, called into question whether U.S. military escalation had achieved the promised results. On January 30, 1968, the North Vietnamese army overran Saigon, the capital of South Vietnam, and launched a daring predawn assault on the U.S. embassy. On November 30, 1969, newspapers reported that U.S. Army troops had massacred several hundred men, women, and children in the remote village of My Lai. Much like the photos from Iraq depicting the abuse of prisoners in the Abu Ghraib prison by U.S. soldiers or news accounts of abusive interrogation tactics and extraordinary rendition of terrorist suspects, these images and reports inspired spirited criticism of the conduct of the war.
Despite the wider social activism that characterized the 1960s, the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war. Opposition to U.S. involvement in Vietnam grew from many quarters, and student activism quickly gravitated to the anti-war movement when President Lyndon Johnson’s administration announced in January 1966 that it would abolish automatic student deferments from the draft. The Students for a Democratic Society’s (SDS) cries of “Make Love — Not War!” “Burn cards, not people!” and “Hell, no, we won’t go!” became the rallying cries for a growing anti-war movement.
On April 4, 1967, Dr. Martin Luther King Jr., made his most public and comprehensive statement against the war. Addressing a crowd of 3,000 people in Riverside Church in New York City, King delivered a speech entitled “Beyond Vietnam” in which he stated that the war effort was “taking the young black men who have been crippled by our society and sending them 8,000 miles away to guarantee liberties in Southeast Asia which they had not found in southwest Georgia and East Harlem.” Two weeks later, he led thousands of demonstrators on an anti-war march to the United Nations. The anti-war movement included not only students and civil rights groups, however, but also returning veterans, including John Kerry, who would go on to serve as a U.S. senator and was the 2004 Democratic presidential nominee. Kerry, a member of the Vietnam Veterans against the War, appeared before the Senate and publicly denounced his fellow Vietnam veterans as war criminals.
Although it can be argued that the anti-war movement and its protests were good drama, this was not the only form of protest inspired by U.S. involvement in Vietnam. A considerable body of litigation also emerged. Coincidentally, two major cases involved classified government documents that would come to be known as the Pentagon Papers. These documents outlined the government strategy and goals for the conduct of the war in Vietnam and included details that could be potentially embarrassing to the government if made public. First was the case of New York Times Co. v. United States (1971). The New York Times had obtained a leaked copy of the Pentagon Papers, which it published in a series of articles. The documents suggested that the government had misled the American people about the war and was continuing to do so. The government issued an injunction against further publication of the documents, which the U.S. Supreme Court overturned. The Court found that this injunction constituted an illegal “prior restraint” in violation of free press guarantees. It thus affirmed, as Justice Potter Stewart explained later in a 1974 speech, that the First Amendment sought “to create a fourth institution outside the government as an additional check on the three official branches” (the executive branch, the legislature, and the judiciary).
In Gravel v. United States (1972), the Court further upheld the right of senators to read excerpts from the Pentagon Papers into the Congressional Record and also protected the rights of congressional staffers helping members with official duties under the Speech and Debate Clause. However, the Court found that the speech and debate clause did not protect members of Congress who sought commercial publication of the Pentagon Papers.
Many of the other cases that arose during the Vietnam War involved anti-war protests, many of which mixed verbal speech with symbolic expression. In United States v. O’Brien (1968) the Supreme Court upheld the conviction of a man who burned a draft card in protest of the Vietnam War. In the process of finding that the government’s interest in preserving the draft outweighed O’Brien’s right of symbolic protest, the Court created a test that it still uses in cases dealing with symbolic speech. In contrast to O’Brien’s conviction, in Tinker v. Des Moines Independent Community School District (1969), the Court upheld the right of high school students to wear black arm bands to protest the war.
In Watts v. United States (1969), the Court reversed the conviction of a young African American man who allegedly made threatening comments against President Johnson as a part of an anti-war protest, ruling that the man’s statements were more rhetorical hyperbole than truly threatening. And although the case was not directly related to the war, the Vietnam era also marked the decision in Brandenburg v. Ohio (1969) that indicated that the Court would not uphold laws suppressing speech that was not likely to result in imminent lawless action.
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