Trials: Dissent and Dr. Spock

For the nation’s antiwar and antidraft protesters, the decision rendered last week in Boston by the U.S. First Circuit Court of Appeals was a less than resounding victory. True, the court over turned the year-old convictions of Dr. Benjamin Spock and Harvard Graduate Student Michael Ferber on charges that they conspired to aid, abet and counsel draft registrants to violate the Selective Service law. Author Mitchell Goodman and Yale Chaplain the Rev. William Sloane Coffin, who were convicted on the same conspiracy charges, were granted retrials. From the dissenters’ view point, however, the cases had been won for entirely the wrong reasons. Their right to unrestrained dissent was not reaffirmed.

The protesters had hoped the court would throw the conspiracy charges out on the grounds that they violated the First Amendment’s guarantees of free speech. Arthur J. Goldberg, former As sociate Justice of the U.S. Supreme Court, based his argument against the convictions on this principle. He contended that the Government’s attempt to prove “conspiracy” against the four protesters was based on public, not secret, expressions of dissent against the draft and the war. “The First Amend-ment,” argued Godberg, “prohibits conditions on any such basis.”

victions on any such basis.”

Case Not Proved. The majority opinion of the Court of Appeals disagreed.

Consipiracy, said the court, does not al ways require secrecy. “The First Amendment does not, per se, require acquittal.” The court agreed with the protesters that “vigorous criticism” of the draft and the war, even if its effect is to interfere with the war effort, constitutes free speech and is protected by the First Amendment. However, the court also contended that when dissenters go past verbal criticism and be come parties to specific illegal acts, they then become liable to prosecution un der conspiracy laws.

Spock and Ferber were acquitted be cause the Appeals Court ruled that the Government had simply not proved its case of conspiracy against them. Good man and Coffin were granted retrials on a legal technicality. But the First Amendment was held to be no bar to their prosecution for conspiracy.