Throughout the ACLU’s history it was involved with some of the most politically and socially galvanizing issues to occur in the United States. One such issue was the anti-war response to the United States involvement in Vietnam. When determining the ACLU’s involvement during this time many important questions arise. In order to better understand the general idea one needs to study the position taken by the ACLU in response to these anti-war demonstrators. Furthermore, it is essential to address some of the specific instances or cases in which the ACLU was involved and what their strategies were during those times. Because these questions play a vital role in providing the information needed to determine the ACLU’s involvement and subsequent impact during this time period, it is also important to question what, if any, were the consequences the ACLU faced as it took action. For instance, did the ACLU risk disagreement within the organization for the positions it took? Overall, answering these questions will allow for deeper insight into the organization during the Vietnam era and for insight into the culture of the United States at that time.
This project revolves around the controversial nature of the United States’ involvement in Vietnam. Although technically never a war, fighting in Vietnam lasted almost a decade, killing over 58,000 Americans many claimed through military conscription. These events angered many Americans who took to protesting the war in numerous ways. Because many were arrested for their actions, attempting to understand how the ACLU’s views on freedom of expression motivated their support, or lack thereof for these Americans, will provide for a deeper understanding of the organization at that time.
I expect to find that the ACLU took great measures in supporting Americans who took part in demonstrations in support of their beliefs. Reasons behind their actions will stem from their ideological belief in the First Amendment. Through litigation, financial support, and other supportive measures, I assume that the ACLU played a vital role in publicly expanding First Amendment Rights. However, because of the varying opinions about the ACLU’s official positions in regards to anti-war demonstrators, I expect to find that the ACLU faced turmoil within its ranks.
A number of authors made observations about the impact of ACLU as it became involved in supporting the rights of individuals to protest. For instance, Samuel Walker (1999) pointed out that as early as 1965, the ACLU provided legal assistance for individuals who had lost their draft deferment because of their anti-war demonstrations. Walker also observed that local boards, such as the New York Civil Liberties Union, went to great lengths to protect First Amendment rights, winning 90% of their 269 cases. Walker noted that although in the forefront of many issues of free speech, the ACLU did not always win its cases. In two instances, individuals who burned their draft cards and received legal assistance from state civil liberty unions had their convictions upheld by federal courts.
Even though the ACLU did not win all of its cases, secondary sources credited it with playing a vital role in another landmark case involving students who wore black armbands to protest military action in Vietnam and were suspended by their school district. Samuel Walker argued that with the help of the ACLU, the Supreme Court ruled in favor of the students and a precedent was set expanding the free speech rights of individuals in schools. Leah Farish, an author writing about the Tinker v. Des Moines case specifically, agreed with Walker, giving credit to ACLU litigators that aided the families during the trial. Farish also observed that the court’s decision had an unexpected impact on the country that set precedent for students’ rights in school and that would play a role in other court decisions in the future.
Another area in which Walker believed the ACLU provided critical support was with conscientious objectors. As in World War I, the ACLU continued to defend the rights of COs and their objection to conscription; however, Walker argued that the ACLU broadened its scope by defending persons’ rights to be selective in their objection to war. In this ideal, individuals specifically against military action in Vietnam could be deferred from the draft with a conscientious objector status.
A significant observation made by scholars was that as protests and demonstrations continued to vary in degree of peacefulness, the ACLU was forced to restate its policies on what it would defend. For example, the ACLU stated that it would protect people who violated a law it considered unconstitutional; however, it would not defend those protesters who chose to violate laws, which the ACLU viewed as having a valid purpose. Joel Gora, David Goldberger, Gary Stern, and Morton Halperin, ACLU members and authors of a handbook outlining the organization’s First Amendment positions, agreed with Walker that in cases such as draft resistance, the ACLU would defend a person if he or she violated the law without breaking those laws that were constitutionally legitimate.
In closing his arguments, Samuel Walker made two more observations about ACLU involvement with anti-war demonstrators. The first claim was that with all of the legal assistance provided by the ACLU, some cases caused dissent between ACLU members. In one such case, involving child-rearing expert Dr. Benjamin Spock, state civil liberty unions fought with the national board, and many members quit because they wanted to provide legal assistance in that controversial case. The other main observation made by Walker was that the ACLU became so heavily involved with anti-war demonstrators that it began to question the legality of the war itself. The ACLU made several futile attempts to bring cases in front of judicial courts to declare the war unconstitutional. However, Walker claimed that not only did involvement in anti-draft litigation and attempts to declare the war unconstitutional prove the ACLU’s drive to protect civil liberties, it also caused a massive increase in ACLU membership, quelling the problems and resignations from previous years.
In sharp contrast to Walker, other secondary literature put a different political spin on the ACLU’s involvement with anti-war efforts. William Donohue (2006) argued that it was the state affiliates that took a more direct role in defending demonstrators than the national board. He continued the argument by inferring that motives behind this defense were more political in nature, because they allowed union members to expand their left wing ideals.
Although recognizing the many important legal situations in which the ACLU and its affiliates were involved, Donohue made other inferences about ACLU involvement that differed from Walker. For instance, he argued that the split in philosophy over the Spock trial forced moderate members to leave, turning the ACLU into a more radical organization with goals of attacking the government to gain political power rather than working with government agencies. Furthermore, Donohue added that the ACLU’s forceful defense of many violent protesters might have given people a sense of security to commit such acts. In this approach, Donohue implied that the ACLU’s involvement in defending protesters actually influenced people to speak out.
Samuel Walker, In Defense of American Liberties, 2 nd ed., (Carbondale: Southern Illinois University Press, 1999), 279.
Leah Farish, Tinker v. Des Moines: Student Protest, (Springfield: Enslow Publishers, Inc., 1997), 11-15.
Farish, 44, 88-90.
Joel M. Gora, David Goldberger, Gary M. Stern, and Morton H. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, (Carbondale: Southern Illinois University Press, 1991), 65-67.
William A. Donohue, The Politics of the American Civil Liberties Union, (New Brunswick, Transaction Publishers, 2006), 193.
Leigh Ann Wheeler, Associate Professor, Binghamton University