Draft-card burning
Encyclopedia
Draft-card burning was a symbol of protest performed by thousands of young American men as part of the opposition to the involvement of the United States in the Vietnam War. Beginning in May 1964, some activists burned their draft cards at anti-war rallies and demonstrations. By May 1965 it was happening with greater frequency. To limit this kind of protest, in August 1965, the United States Congress
enacted a law to broaden draft card violations to punish anyone who "knowingly destroys, knowingly mutilates" his draft card. Subsequently, 46 men were indicted for burning their draft cards at various rallies, and four major court cases were heard. One of them, United States v. O'Brien
, was argued before the Supreme Court. The act of draft card burning was defended as a symbolic form of free speech, a constitutional right guaranteed by the First Amendment
. The Supreme Court decided against the draft card burners; it determined that the federal law was justified and that it was unrelated to the freedom of speech. This outcome was criticized by legal experts.
In Australia following the 1966 troop increases directed by Prime Minister
Harold Holt
, conscription notices were burned at mass demonstrations against Australian involvement in Vietnam. In June 1968, the government reacted by strengthening penalties for infractions of the 1964 National Service Act, including the burning of registration cards. War protest ceased in 1972 when Australia's new Labor government
withdrew troops from Vietnam and abolished conscription
.
From 1965 to 1973, very few men in the U.S. were convicted of burning their draft cards. Some 25,000 others went unpunished. Before 1965, the act of burning a draft card was already prohibited by U.S. statute—the registrant was required to carry the card at all times, and any destruction of it was thus against the law. Also, it was entirely possible for a young man to destroy his draft card and still answer his country's call to service by appearing at an induction center and serving in the military. And it was possible for a registrant to faithfully keep his card on his person but fail to appear when called. The draft card was not an essential part of the government's ability to draft men into the military. Thus draft-card burning was an act of war resistance more than it was draft resistance.
The image of draft card burning was a powerful one, influential in American politics and culture. It appeared in magazines, newspapers and on television, signaling a political divide between those who backed the U.S. government and its military goals and those who were against any U.S. involvement in Vietnam. Richard Nixon
ran for president in 1968
on a platform based partly on putting an end to the draft
, in order to undercut protesters making use of the symbolic act. As president, Nixon ended the draft in 1973, rendering unnecessary the symbolic act of draft-card burning.
, all American men between the ages of 18 and 35 were required to register with a local draft board. In case of war, the able-bodied ones among them could be drafted to serve in the military. The law required the men to carry their draft cards with them at all times. These were small white cards bearing the registrant's identifying information, the date and place of registration, and a unique Selective Service number.
In an amendment sponsored by Congressmen L. Mendel Rivers
and William G. Bray
, on August 31, 1965, the law was augmented with four words, to include penalties for any person who "knowingly destroys, knowingly mutilates" the card, under 50 U.S.C.
§ 462(b)(3). Strom Thurmond
moved the bill through the Senate, calling draft-card burning "contumacious conduct" which "represents a potential threat to the exercise of the power to raise and support armies." At the time, many observers (including the U.S. Court of Appeals for the First Circuit) believed that Congress had intentionally targeted anti-war draft-card burners.
sent a battalion of Army regulars to Vietnam, beginning an overseas involvement in that country which lasted for seven years and provoked deeply divisive debate back home. In early 1966, the Australian Labor Party
came to power, and Harold Holt became Prime Minister. In March 1966, Holt announced troop increases bringing the total commitment to 4,500 men in Vietnam, a tripling of effort. Significantly, conscripts could now be sent into combat. Protests broke out, including a draft-card burning demonstration outside of Holt's home. In late June 1966 with President Lyndon B. Johnson
listening, Holt spoke in Washington, D.C.
in support of American policy. In his speech he closed by saying that Australia was a "staunch friend" of America, willing to go "all the way with LBJ". This statement was widely criticized in Australia. Marxist writer and draft-card burner Andy Blunden
said in July that, "by following America into Vietnam, Holt's Australia is playing the role of Mussolini's Italy." In December the government bolstered the Vietnam presence with 1,700 more troops.
John Gorton
took the Prime Minister position in January 1968. In June 1968, the government doubled the penalty for the burning of registration cards. In 1971, the government committed to a gradual but total withdrawal from Vietnam—following both Australian opinion and America's new policy. In 1972, all troops including the advisory team were ordered home from Vietnam. Draft resisters in jail were freed. The final birthday lottery was held September 22, 1972.
On October 15, 1965, David J. Miller burned his draft card at a rally held near the Armed Forces Induction Center on Whitehall Street in Manhattan. He spoke briefly to the crowd from atop a sound truck and then tried but failed to burn his card with matches—the wind kept blowing them out. A lighter
was offered by the crowd and it worked. Miller was arrested by the FBI three days later in Manchester, New Hampshire
while setting up peace literature on a table. The 24-year-old pacifist, member of the Catholic Worker Movement
, became the first man convicted under the 1965 amendment. In April 1966 with his wife and breast-feeding baby in attendance, he was sentenced to 30 months in prison. The case was argued in the United States Court of Appeals for the Second Circuit
in June. Miller's attorney held that "symbolic speech
is protected by the First Amendment; burning a draft card is a most dramatic form of communication, and there is a constitutional right to make one's speech as effective as possible." The court did not agree. The case was decided later that year in October: Miller's conviction was confirmed and his sentence upheld. Loudon Wainwright Jr wrote in Life
magazine that Miller, "without really knowing it, might be embarking on a lifelong career of protest." Miller remained free on bail until June 1968 at which time he served 22 months in federal prison.
At an anti-war rally at the Memorial Union
in Iowa City, Iowa
, on October 20, 1965, 20-year-old Stephen Lynn Smith, a student at the University of Iowa
, spoke to the crowd and burned his draft card. He said, "I do not feel that five years of my life are too much to give to say that this law is wrong." He had previously alerted newspaper reporters and two television stations, and they were present to record his act. Smith said he was against the involvement of the U.S. in Vietnam, and that he was against the system of conscription. In November 1966 he was found guilty and placed on probation for three years.
In June–July 1967, United States v. Edelman was argued and decided in the U.S. Second Circuit. Thomas C. Cornell, Marc Paul Edelman and Roy Lisker had burned their draft cards at a public rally organized by the Committee for Non-Violent Action
in Union Square, New York City
, on November 6, 1965. A fourth man older than 36 also burned his card at the rally but was not indicted. Edelman, Cornell and Lisker were convicted and sentenced to six months.
Courthouse, in front of a crowd that included several FBI agents. After the four men came under attack from some of the crowd, an FBI agent ushered O'Brien inside the courthouse and advised him of his rights. O'Brien made a confession and produced the charred remains of the certificate. He was then indicted for violating § 462(b)(3) and put on trial in the U.S. District Court for the District of Massachusetts.
O'Brien argued that the four words added to the draft card law were unconstitutional, that they were an abridgment of the freedom of speech. He argued that the amendment served no valid purpose because the Selective Service Act already required draft registrants to carry their card on their persons at all times, thus any form of destruction was already a violation. He explained that he burned the draft card publicly as a form of symbolic speech to persuade others to oppose the war, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." On January 24, 1968, the Supreme Court determined that the 1965 amendment was constitutional as enacted and as applied, and that it did not distinguish between public or private destruction or mutilation of the draft card. They determined that there was nothing necessarily expressive in the burning of a draft card. Chief Justice
Earl Warren
said, "we cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." O'Brien's previous sentence of six years was upheld.
The Supreme Court's conclusion was criticized by legal observers such as Dean Alfange Jr for its "astonishingly cavalier" treatment. Many saw in O'Brien's act a clear communicative element with the "intent to convey a particularized message", an intent to which the court did not give much weight. Instead, the court weighed as greater the government's interest "in assuring the continued availability of issued Selective Service certificates."
In 1975, legal scholar John Hart Ely
found fault with O'Brien. He pointed out that the draft-card-burning question was not decided in relation to the similar one surrounding the act of flag burning
; an issue which the court had avoided for years. Ely's analysis was aided by that of Thomas Scanlon
in 1972, in A Theory of Freedom of Expression, which interpreted the freedom of speech broadly, including such public and political acts as self-immolation
. In 1990 O'Brien was analyzed again by critics following the case United States v. Eichman
which determined that flag burning was a form of free speech, and some made comparisons to the earlier 1984 case Clark v. Community for Creative Non-Violence which determined that sleeping at a protest rally location in a downtown park was valid as a symbolic expression intended to bring attention to the plight of the homeless. These expansive interpretations of the freedom of speech appeared large enough to include draft-card burning. The position taken in O'Brien was that the individual's right to freedom of speech did not limit the government in prohibiting harmful conduct. However, the harmful conduct of burning a draft card did not have the normal test applied: it was not determined to be a case of "clear and present danger".
In 1996, future Supreme Court Justice Elena Kagan
pointed out that the O'Brien court did not appear to be concerned whether the law as enacted or enforced "matched, or even resembled" the asserted government interest of stopping draft resistance protests. Kagan noted that the law prohibiting the destruction of the draft card "interfered" with only one point of view: that of the anti-war protester. She allowed as how a successful challenge to O'Brien might come from focusing on such skewed constraints.
At the University of California, Berkeley
, on May 5, 1965, amid a protest march of several hundred people carrying a black coffin to the Berkeley draft board, 40 men burned their draft cards. One of them told reporters the act was symbolic—he said "we can get new cards if we apply for them." On May 22, 1965, the Berkeley draft board was visited again, with 19 men burning their cards. President Lyndon B. Johnson
was hung in effigy.
In August 1965, Life
carried a photograph of a man demonstrating in front of the Armed Forces Induction Center on Whitehall Street in Manhattan, July 30, 1965. Like David J. Miller a few months later, he was a member of the Catholic Worker Movement. He was not arrested.
Antiwar activist Abbie Hoffman
burned his draft card privately in the Spring of 1967. Hoffman's card classified him as 4F—unfit for service—because of bronchial asthma
. His act was purely symbolic; he would never be drafted. However, Hoffman supported those registrants who were burning their cards.
On April 15, 1967, at Sheep Meadow, Central Park
, New York City, some 60 young men including a few students from Cornell University
came together to burn their draft cards in a Maxwell House
coffee can. Surrounded by their friends who linked arms to protect them, the men began burning their cards. Others rushed in to join them, holding their burning cards up in the air. Watching this were police, FBI men, newsreel
cameramen, reporters, photographers and passers-by. Uniformed Green Beret Army reservist Gary Rader
walked to the center and burned his draft card. The 23-year-old was arrested by FBI agents several days later at his home in Evanston, Illinois
. Time
magazine estimated 75 total cards; participant Martin Jezer
wrote that there were about 158 cards burnt in all. Future Youth International Party
leader Hoffman was in attendance.
The reports of this large protest were discussed by the leaders of the Spring Mobilization Conference, a march of 150,000 people led by Martin Luther King Jr and Dr. Benjamin Spock
starting from Sheep Meadow. The May conference developed into the National Mobilization Committee to End the War in Vietnam
, known as The Mobe. In January 1968, Spock was convicted on charges of encouraging draft evasion. The charges were overturned on appeal in July 1969.
In May 1967 in response to the Sheep Meadow demonstration, 56-year-old anarchist intellectual Paul Goodman
published a piece in The New York Review of Books
sympathetic to both public and private draft card burning. The editors printed a salvo of responses. One from Ann D. Gordon, a doctoral student of American history, said that private, individual acts of card burning were useless in stopping the war. Jezer wrote a letter thanking Goodman for his support and, as an eye witness, corrected him on certain details. Jezer said the FBI arrested only Rader; other participants were merely visited by FBI agents. Goodman's article exhorted his readers to massive direct action in draft resistance; in response, folk singer Robert Claiborne
wrote to the Review to say that Goodman's plan would "check the growth of the peace movement and markedly reduce prospects for ending the war." Claiborne asserted that the "great majority" of Americans were "squares
" over 30 and not in favor of war protest even though they were likely interested in "ending the slaughter of their sons and other people’s sons."
October 16, 1967, was a day of widespread war protest organized by The Mobe in 30 cities across the U.S., with some 1,400 draft cards burned. At the Unitarian
Arlington Street Church in Boston
, draft registrants were given the opportunity to turn in their draft cards to be sent as a package to Selective Service as an act of civil disobedience
against the war. Those offering their draft cards split into two groups: a group of 214 turned in their cards, and 67 chose to burn their cards. These 67 used an old candle from prominent Unitarian preacher William Ellery Channing
to supply the flame. One woman, Nan Stone, burned a draft card belonging to Steve Paillet—the 1965 law allowed for anyone to be punished for draft-card burning, even someone who was not registered for the draft. Stone later typed up the information from the 214 turned-in cards to serve as a database of war resisters. She found that the average and mean age of the men was 22, and that three out of four came from Harvard
, Yale
, or Boston University
.
At San Francisco's Federal Building
on December 4, 1967, some 500 protesters witnessed 88 draft cards collected and burned.
About 1,000 draft cards were turned in on April 3, 1968, in nationwide protests organized by The Mobe. In Boston, 15,000 protesters watched 235 men turn in their draft cards. War protesters were increasingly choosing the more profound act of turning in their draft cards, an act which gave the government the name and address of the protester. Burning the draft card destroyed the evidence, and by this time was seen as less courageous.
, spoke against what he saw as too much news coverage: "All of our young people are not burning up their draft cards. All of our young people are not tearing up the flag. All of our youth are not supporting North Vietnam and carrying Viet Cong flags." In October 1967 at a rally in support of the government a news photograph was snapped of a man kissing his draft card, his girlfriend smiling at his side. In Playboy
s November 1967 issue, Playboy Playmate Kaya Christian wrote that her "turn-offs" were "hypocrites" and "draft card burners".
Leftist Ramparts
magazine showed four draft cards being burned on the December 1967 cover. The Saturday Evening Post
, a conservative publication, put an image of draft card burning on their cover, January 27, 1968. In 1967 off-Broadway
and 1968 on Broadway
and in London's West End
, the musical Hair
featured a climactic scene in Act I of a group of men in a hippie "tribe" burning their draft cards while the main character Claude struggles with the decision to join them.
President Johnson spoke strongly against the draft-card protesters, saying in October 1967 that he wanted the "antidraft movement" investigated for Communist influences. Reporting on his reaction, The New York Times
presented the protests as being against the draft rather than the war. Many commentators focused on draft resistance as an explanation rather than the more challenging war resistance: the main concern of the protesters. In 1968 when Richard Nixon was running for election against Johnson, he determined that he could gain supporters on both sides of the war question by promising to abolish the draft, promising to make the military into a purely volunteer force
. In this he was following others who had suggested such a strategy, including Donald Rumsfeld
of the Republican
Wednesday Group the year before. After gaining the presidency—twice—Nixon finally stopped the draft after February 1973. The last man to be drafted entered the U.S. Army on June 30, 1973.
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
enacted a law to broaden draft card violations to punish anyone who "knowingly destroys, knowingly mutilates" his draft card. Subsequently, 46 men were indicted for burning their draft cards at various rallies, and four major court cases were heard. One of them, United States v. O'Brien
United States v. O'Brien
United States v. O'Brien, 391 U.S. 367 , was a decision by the Supreme Court of the United States, which ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech...
, was argued before the Supreme Court. The act of draft card burning was defended as a symbolic form of free speech, a constitutional right guaranteed by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. The Supreme Court decided against the draft card burners; it determined that the federal law was justified and that it was unrelated to the freedom of speech. This outcome was criticized by legal experts.
In Australia following the 1966 troop increases directed by Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Harold Holt
Harold Holt
Harold Edward Holt, CH was an Australian politician and the 17th Prime Minister of Australia.His term as Prime Minister was brought to an early and dramatic end in December 1967 when he disappeared while swimming at Cheviot Beach near Portsea, Victoria, and was presumed drowned.Holt spent 32 years...
, conscription notices were burned at mass demonstrations against Australian involvement in Vietnam. In June 1968, the government reacted by strengthening penalties for infractions of the 1964 National Service Act, including the burning of registration cards. War protest ceased in 1972 when Australia's new Labor government
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
withdrew troops from Vietnam and abolished conscription
Conscription in Australia
Conscription in Australia, or mandatory military service also known as National Service, has a controversial history dating back to the first years of nationhood...
.
From 1965 to 1973, very few men in the U.S. were convicted of burning their draft cards. Some 25,000 others went unpunished. Before 1965, the act of burning a draft card was already prohibited by U.S. statute—the registrant was required to carry the card at all times, and any destruction of it was thus against the law. Also, it was entirely possible for a young man to destroy his draft card and still answer his country's call to service by appearing at an induction center and serving in the military. And it was possible for a registrant to faithfully keep his card on his person but fail to appear when called. The draft card was not an essential part of the government's ability to draft men into the military. Thus draft-card burning was an act of war resistance more than it was draft resistance.
The image of draft card burning was a powerful one, influential in American politics and culture. It appeared in magazines, newspapers and on television, signaling a political divide between those who backed the U.S. government and its military goals and those who were against any U.S. involvement in Vietnam. Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
ran for president in 1968
United States presidential election, 1968
The United States presidential election of 1968 was the 46th quadrennial United States presidential election. Coming four years after Democrat Lyndon B. Johnson won in a historic landslide, it saw Johnson forced out of the race and Republican Richard Nixon elected...
on a platform based partly on putting an end to the draft
Conscription in the United States
Conscription in the United States has been employed several times, usually during war but also during the nominal peace of the Cold War...
, in order to undercut protesters making use of the symbolic act. As president, Nixon ended the draft in 1973, rendering unnecessary the symbolic act of draft-card burning.
United States
From 1948, under the Selective Service ActSelective Service Act of 1948
The Selective Service Act of 1948, also known as the Elston Act, , was a major revision of the Articles of War of the United States and established the current implementation of the Selective Service System...
, all American men between the ages of 18 and 35 were required to register with a local draft board. In case of war, the able-bodied ones among them could be drafted to serve in the military. The law required the men to carry their draft cards with them at all times. These were small white cards bearing the registrant's identifying information, the date and place of registration, and a unique Selective Service number.
In an amendment sponsored by Congressmen L. Mendel Rivers
L. Mendel Rivers
Lucius Mendel Rivers was a Democratic U.S. Representative from South Carolina, representing the Charleston based 1st congressional district for nearly thirty years...
and William G. Bray
William G. Bray
William Gilmer Bray was a member of the United States House of Representatives from Indiana.Born on a farm near Mooresville, Indiana, Bray attended the public schools of Mooresville, Indiana....
, on August 31, 1965, the law was augmented with four words, to include penalties for any person who "knowingly destroys, knowingly mutilates" the card, under 50 U.S.C.
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
§ 462(b)(3). Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
moved the bill through the Senate, calling draft-card burning "contumacious conduct" which "represents a potential threat to the exercise of the power to raise and support armies." At the time, many observers (including the U.S. Court of Appeals for the First Circuit) believed that Congress had intentionally targeted anti-war draft-card burners.
Australia
Following the 1964 National Service Act, legislated in response to the Indonesia–Malaysia confrontation, 20-year-old Australian men were subject to military service based on a birthday lottery. In April 1965, Prime Minister Sir Robert MenziesRobert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
sent a battalion of Army regulars to Vietnam, beginning an overseas involvement in that country which lasted for seven years and provoked deeply divisive debate back home. In early 1966, the Australian Labor Party
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
came to power, and Harold Holt became Prime Minister. In March 1966, Holt announced troop increases bringing the total commitment to 4,500 men in Vietnam, a tripling of effort. Significantly, conscripts could now be sent into combat. Protests broke out, including a draft-card burning demonstration outside of Holt's home. In late June 1966 with President Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
listening, Holt spoke in Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
in support of American policy. In his speech he closed by saying that Australia was a "staunch friend" of America, willing to go "all the way with LBJ". This statement was widely criticized in Australia. Marxist writer and draft-card burner Andy Blunden
Andy Blunden
Andy Blunden is an Australian writer and Marxist philosopher based in Melbourne.Blunden is a member and secretary of the Marxists Internet Archive Collective , a website which contains many Marxist and Marxist related text on history, philosophy and politics along with many other topics.Another...
said in July that, "by following America into Vietnam, Holt's Australia is playing the role of Mussolini's Italy." In December the government bolstered the Vietnam presence with 1,700 more troops.
John Gorton
John Gorton
Sir John Grey Gorton, GCMG, AC, CH , Australian politician, was the 19th Prime Minister of Australia.-Early life:...
took the Prime Minister position in January 1968. In June 1968, the government doubled the penalty for the burning of registration cards. In 1971, the government committed to a gradual but total withdrawal from Vietnam—following both Australian opinion and America's new policy. In 1972, all troops including the advisory team were ordered home from Vietnam. Draft resisters in jail were freed. The final birthday lottery was held September 22, 1972.
Early cases
Lighter
A lighter is a portable device used to generate a flame. It consists of a metal or plastic container filled with a flammable fluid or pressurized liquid gas, a means of ignition, and some provision for extinguishing the flame.- History :...
was offered by the crowd and it worked. Miller was arrested by the FBI three days later in Manchester, New Hampshire
Manchester, New Hampshire
Manchester is the largest city in the U.S. state of New Hampshire, the tenth largest city in New England, and the largest city in northern New England, an area comprising the states of Maine, New Hampshire, and Vermont. It is in Hillsborough County along the banks of the Merrimack River, which...
while setting up peace literature on a table. The 24-year-old pacifist, member of the Catholic Worker Movement
Catholic Worker Movement
The Catholic Worker Movement is a collection of autonomous communities of Catholics and their associates founded by Dorothy Day and Peter Maurin in 1933. Its aim is to "live in accordance with the justice and charity of Jesus Christ." One of its guiding principles is hospitality towards those on...
, became the first man convicted under the 1965 amendment. In April 1966 with his wife and breast-feeding baby in attendance, he was sentenced to 30 months in prison. The case was argued in the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
in June. Miller's attorney held that "symbolic speech
Symbolic speech
Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly...
is protected by the First Amendment; burning a draft card is a most dramatic form of communication, and there is a constitutional right to make one's speech as effective as possible." The court did not agree. The case was decided later that year in October: Miller's conviction was confirmed and his sentence upheld. Loudon Wainwright Jr wrote in Life
Life (magazine)
Life generally refers to three American magazines:*A humor and general interest magazine published from 1883 to 1936. Time founder Henry Luce bought the magazine in 1936 solely so that he could acquire the rights to its name....
magazine that Miller, "without really knowing it, might be embarking on a lifelong career of protest." Miller remained free on bail until June 1968 at which time he served 22 months in federal prison.
At an anti-war rally at the Memorial Union
Memorial Union (Iowa State University)
The Memorial Union, or MU, at Iowa State University opened in September 1928, the building is currently home to a number of University departments, a bowling alley, the University Book Store, and the Hotel Memorial Union.-History:...
in Iowa City, Iowa
Iowa City, Iowa
Iowa City is a city in Johnson County, State of Iowa. As of the 2010 Census, the city had a total population of about 67,862, making it the sixth-largest city in the state. Iowa City is the county seat of Johnson County and home to the University of Iowa...
, on October 20, 1965, 20-year-old Stephen Lynn Smith, a student at the University of Iowa
University of Iowa
The University of Iowa is a public state-supported research university located in Iowa City, Iowa, United States. It is the oldest public university in the state. The university is organized into eleven colleges granting undergraduate, graduate, and professional degrees...
, spoke to the crowd and burned his draft card. He said, "I do not feel that five years of my life are too much to give to say that this law is wrong." He had previously alerted newspaper reporters and two television stations, and they were present to record his act. Smith said he was against the involvement of the U.S. in Vietnam, and that he was against the system of conscription. In November 1966 he was found guilty and placed on probation for three years.
In June–July 1967, United States v. Edelman was argued and decided in the U.S. Second Circuit. Thomas C. Cornell, Marc Paul Edelman and Roy Lisker had burned their draft cards at a public rally organized by the Committee for Non-Violent Action
Committee for Non-Violent Action
The Committee for Non-Violent Action , formed in 1957 to resist the US government's program of nuclear weapons testing, was one of the first organizations to employ nonviolent direct action to protest against the nuclear arms race....
in Union Square, New York City
Union Square (New York City)
Union Square is a public square in the Manhattan borough of New York City, New York.It is an important and historic intersection, located where Broadway and the former Bowery Road – now Fourth Avenue – came together in the early 19th century; its name celebrates neither the...
, on November 6, 1965. A fourth man older than 36 also burned his card at the rally but was not indicted. Edelman, Cornell and Lisker were convicted and sentenced to six months.
United States v. O'Brien
On the morning of March 31, 1966, David Paul O'Brien and three companions burned their draft cards on the steps of the South BostonSouth Boston, Massachusetts
South Boston is a densely populated neighborhood of Boston, Massachusetts, located south and east of the Fort Point Channel and abutting Dorchester Bay. One of America's oldest and most historic neighborhoods, South Boston was formerly known as Dorchester Neck, and today is called "Southie" by...
Courthouse, in front of a crowd that included several FBI agents. After the four men came under attack from some of the crowd, an FBI agent ushered O'Brien inside the courthouse and advised him of his rights. O'Brien made a confession and produced the charred remains of the certificate. He was then indicted for violating § 462(b)(3) and put on trial in the U.S. District Court for the District of Massachusetts.
O'Brien argued that the four words added to the draft card law were unconstitutional, that they were an abridgment of the freedom of speech. He argued that the amendment served no valid purpose because the Selective Service Act already required draft registrants to carry their card on their persons at all times, thus any form of destruction was already a violation. He explained that he burned the draft card publicly as a form of symbolic speech to persuade others to oppose the war, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." On January 24, 1968, the Supreme Court determined that the 1965 amendment was constitutional as enacted and as applied, and that it did not distinguish between public or private destruction or mutilation of the draft card. They determined that there was nothing necessarily expressive in the burning of a draft card. Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
said, "we cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." O'Brien's previous sentence of six years was upheld.
The Supreme Court's conclusion was criticized by legal observers such as Dean Alfange Jr for its "astonishingly cavalier" treatment. Many saw in O'Brien's act a clear communicative element with the "intent to convey a particularized message", an intent to which the court did not give much weight. Instead, the court weighed as greater the government's interest "in assuring the continued availability of issued Selective Service certificates."
In 1975, legal scholar John Hart Ely
John Hart Ely
John Hart Ely is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr., according to a 2000 study in the University of Chicago's Journal of Legal Studies.-Biography:Born in New York City, John Hart...
found fault with O'Brien. He pointed out that the draft-card-burning question was not decided in relation to the similar one surrounding the act of flag burning
Flag desecration
Flag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
; an issue which the court had avoided for years. Ely's analysis was aided by that of Thomas Scanlon
T. M. Scanlon
Thomas Michael Scanlon is the Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity in Harvard University's Department of Philosophy. He has been awarded a MacArthur Foundation "Genius" Grant. He grew up in Indianapolis, Indiana; earned his Ph.D...
in 1972, in A Theory of Freedom of Expression, which interpreted the freedom of speech broadly, including such public and political acts as self-immolation
Self-immolation
Self-immolation refers to setting oneself on fire, often as a form of protest or for the purposes of martyrdom or suicide. It has centuries-long traditions in some cultures, while in modern times it has become a type of radical political protest...
. In 1990 O'Brien was analyzed again by critics following the case United States v. Eichman
United States v. Eichman
United States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
which determined that flag burning was a form of free speech, and some made comparisons to the earlier 1984 case Clark v. Community for Creative Non-Violence which determined that sleeping at a protest rally location in a downtown park was valid as a symbolic expression intended to bring attention to the plight of the homeless. These expansive interpretations of the freedom of speech appeared large enough to include draft-card burning. The position taken in O'Brien was that the individual's right to freedom of speech did not limit the government in prohibiting harmful conduct. However, the harmful conduct of burning a draft card did not have the normal test applied: it was not determined to be a case of "clear and present danger".
In 1996, future Supreme Court Justice Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
pointed out that the O'Brien court did not appear to be concerned whether the law as enacted or enforced "matched, or even resembled" the asserted government interest of stopping draft resistance protests. Kagan noted that the law prohibiting the destruction of the draft card "interfered" with only one point of view: that of the anti-war protester. She allowed as how a successful challenge to O'Brien might come from focusing on such skewed constraints.
Rallies
On May 12, 1964, in New York, 12 students at a rally burned their draft cards.At the University of California, Berkeley
University of California, Berkeley
The University of California, Berkeley , is a teaching and research university established in 1868 and located in Berkeley, California, USA...
, on May 5, 1965, amid a protest march of several hundred people carrying a black coffin to the Berkeley draft board, 40 men burned their draft cards. One of them told reporters the act was symbolic—he said "we can get new cards if we apply for them." On May 22, 1965, the Berkeley draft board was visited again, with 19 men burning their cards. President Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
was hung in effigy.
In August 1965, Life
Life (magazine)
Life generally refers to three American magazines:*A humor and general interest magazine published from 1883 to 1936. Time founder Henry Luce bought the magazine in 1936 solely so that he could acquire the rights to its name....
carried a photograph of a man demonstrating in front of the Armed Forces Induction Center on Whitehall Street in Manhattan, July 30, 1965. Like David J. Miller a few months later, he was a member of the Catholic Worker Movement. He was not arrested.
Antiwar activist Abbie Hoffman
Abbie Hoffman
Abbot Howard "Abbie" Hoffman was a political and social activist who co-founded the Youth International Party ....
burned his draft card privately in the Spring of 1967. Hoffman's card classified him as 4F—unfit for service—because of bronchial asthma
Asthma
Asthma is the common chronic inflammatory disease of the airways characterized by variable and recurring symptoms, reversible airflow obstruction, and bronchospasm. Symptoms include wheezing, coughing, chest tightness, and shortness of breath...
. His act was purely symbolic; he would never be drafted. However, Hoffman supported those registrants who were burning their cards.
On April 15, 1967, at Sheep Meadow, Central Park
Sheep Meadow, Central Park
The preserve known as Sheep Meadow has a long history as a gathering place for large scale demonstrations and political movements. It is currently a favorite spot for families, sunbathers, picnickers, kite flyers, and other visitors to come relax and admire the New York City skyline...
, New York City, some 60 young men including a few students from Cornell University
Cornell University
Cornell University is an Ivy League university located in Ithaca, New York, United States. It is a private land-grant university, receiving annual funding from the State of New York for certain educational missions...
came together to burn their draft cards in a Maxwell House
Maxwell House
Maxwell House is a brand of coffee manufactured by a like-named division of Kraft Foods. Introduced in 1892, it is named in honor of the Maxwell House Hotel in Nashville, Tennessee. For many years until the late 1980s it was the largest-selling coffee in the U.S. and is currently second behind...
coffee can. Surrounded by their friends who linked arms to protect them, the men began burning their cards. Others rushed in to join them, holding their burning cards up in the air. Watching this were police, FBI men, newsreel
Newsreel
A newsreel was a form of short documentary film prevalent in the first half of the 20th century, regularly released in a public presentation place and containing filmed news stories and items of topical interest. It was a source of news, current affairs and entertainment for millions of moviegoers...
cameramen, reporters, photographers and passers-by. Uniformed Green Beret Army reservist Gary Rader
Gary Rader
Gary Eugene Rader was an American Army Reservist known for burning his draft card in protest of the Vietnam War, while wearing his U.S. Army Special Forces uniform. Afterward, he engaged in anti-war activism.-Background:...
walked to the center and burned his draft card. The 23-year-old was arrested by FBI agents several days later at his home in Evanston, Illinois
Evanston, Illinois
Evanston is a suburban municipality in Cook County, Illinois 12 miles north of downtown Chicago, bordering Chicago to the south, Skokie to the west, and Wilmette to the north, with an estimated population of 74,360 as of 2003. It is one of the North Shore communities that adjoin Lake Michigan...
. Time
Time (magazine)
Time is an American news magazine. A European edition is published from London. Time Europe covers the Middle East, Africa and, since 2003, Latin America. An Asian edition is based in Hong Kong...
magazine estimated 75 total cards; participant Martin Jezer
Martin Jezer
Marty Jezer , was a well-known activist and author. Born Martin Jezer and raised in the Bronx, he earned a history degree from Lafayette College. He was a co-founding member of the Working Group on Electoral Democracy, and co-authored influential model legislation on campaign finance reform that...
wrote that there were about 158 cards burnt in all. Future Youth International Party
Youth International Party
The Youth International Party, whose members were commonly called Yippies, was a radically youth-oriented and countercultural revolutionary offshoot of the free speech and anti-war movements of the 1960s. It was founded on Dec. 31, 1967...
leader Hoffman was in attendance.
The reports of this large protest were discussed by the leaders of the Spring Mobilization Conference, a march of 150,000 people led by Martin Luther King Jr and Dr. Benjamin Spock
Benjamin Spock
Benjamin McLane Spock was an American pediatrician whose book Baby and Child Care, published in 1946, is one of the biggest best-sellers of all time. Its message to mothers is that "you know more than you think you do."Spock was the first pediatrician to study psychoanalysis to try to understand...
starting from Sheep Meadow. The May conference developed into the National Mobilization Committee to End the War in Vietnam
National Mobilization Committee to End the War in Vietnam
The National Mobilization Committee to End the War in Vietnam was a relatively short-lived coalition of antiwar activists formed in 1967 to organize large demonstrations in opposition to the Vietnam War. The organization was informally known as "the Mobe"....
, known as The Mobe. In January 1968, Spock was convicted on charges of encouraging draft evasion. The charges were overturned on appeal in July 1969.
In May 1967 in response to the Sheep Meadow demonstration, 56-year-old anarchist intellectual Paul Goodman
Paul Goodman (writer)
Paul Goodman was an American sociologist, poet, writer, anarchist, and public intellectual. Goodman is now mainly remembered as the author of Growing Up Absurd and an activist on the pacifist Left in the 1960s and an inspiration to that era's student movement...
published a piece in The New York Review of Books
The New York Review of Books
The New York Review of Books is a fortnightly magazine with articles on literature, culture and current affairs. Published in New York City, it takes as its point of departure that the discussion of important books is itself an indispensable literary activity...
sympathetic to both public and private draft card burning. The editors printed a salvo of responses. One from Ann D. Gordon, a doctoral student of American history, said that private, individual acts of card burning were useless in stopping the war. Jezer wrote a letter thanking Goodman for his support and, as an eye witness, corrected him on certain details. Jezer said the FBI arrested only Rader; other participants were merely visited by FBI agents. Goodman's article exhorted his readers to massive direct action in draft resistance; in response, folk singer Robert Claiborne
Robert Claiborne
Robert Watson Claiborne, Jr. American folk singer, labor organizer and writer.-Overview:Robert Claiborne, grandson of John Herbert Claiborne, was a folk singer and union organizer in the 1940s and 1950s. He travelled and performed with such luminaries as Pete Seeger, Woody Guthrie, Leadbelly and...
wrote to the Review to say that Goodman's plan would "check the growth of the peace movement and markedly reduce prospects for ending the war." Claiborne asserted that the "great majority" of Americans were "squares
Square (slang)
Square used as slang may mean many things when referring to a person or in common language.In referring to a person, the word originally meant someone who was honest, traditional and loyal. An agreement that is equitable on all sides is a "square deal"...
" over 30 and not in favor of war protest even though they were likely interested in "ending the slaughter of their sons and other people’s sons."
October 16, 1967, was a day of widespread war protest organized by The Mobe in 30 cities across the U.S., with some 1,400 draft cards burned. At the Unitarian
Unitarianism
Unitarianism is a Christian theological movement, named for its understanding of God as one person, in direct contrast to Trinitarianism which defines God as three persons coexisting consubstantially as one in being....
Arlington Street Church in Boston
Boston
Boston is the capital of and largest city in Massachusetts, and is one of the oldest cities in the United States. The largest city in New England, Boston is regarded as the unofficial "Capital of New England" for its economic and cultural impact on the entire New England region. The city proper had...
, draft registrants were given the opportunity to turn in their draft cards to be sent as a package to Selective Service as an act of civil disobedience
Civil disobedience
Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...
against the war. Those offering their draft cards split into two groups: a group of 214 turned in their cards, and 67 chose to burn their cards. These 67 used an old candle from prominent Unitarian preacher William Ellery Channing
William Ellery Channing
Dr. William Ellery Channing was the foremost Unitarian preacher in the United States in the early nineteenth century and, along with Andrews Norton, one of Unitarianism's leading theologians. He was known for his articulate and impassioned sermons and public speeches, and as a prominent thinker...
to supply the flame. One woman, Nan Stone, burned a draft card belonging to Steve Paillet—the 1965 law allowed for anyone to be punished for draft-card burning, even someone who was not registered for the draft. Stone later typed up the information from the 214 turned-in cards to serve as a database of war resisters. She found that the average and mean age of the men was 22, and that three out of four came from Harvard
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
, Yale
Yale University
Yale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States...
, or Boston University
Boston University
Boston University is a private research university located in Boston, Massachusetts. With more than 4,000 faculty members and more than 31,000 students, Boston University is one of the largest private universities in the United States and one of Boston's largest employers...
.
At San Francisco's Federal Building
Phillip Burton Federal Building
The Phillip Burton Federal Building is a massive 21 floor, federal office building located close to San Francisco's Civic Center and the San Francisco City Hall. The building was finished in 1959, one of the earliest office towers for San Francisco....
on December 4, 1967, some 500 protesters witnessed 88 draft cards collected and burned.
About 1,000 draft cards were turned in on April 3, 1968, in nationwide protests organized by The Mobe. In Boston, 15,000 protesters watched 235 men turn in their draft cards. War protesters were increasingly choosing the more profound act of turning in their draft cards, an act which gave the government the name and address of the protester. Burning the draft card destroyed the evidence, and by this time was seen as less courageous.
Public reaction
Many in America were not happy with the draft-card burners, or with the frequent depiction of them in the media. Joseph Scerra, national commander of the Veterans of Foreign WarsVeterans of Foreign Wars
The Veterans of Foreign Wars of the United States is a congressionally chartered war veterans organization in the United States. Headquartered in Kansas City, Missouri, VFW currently has 1.5 million members belonging to 7,644 posts, and is the largest American organization of combat...
, spoke against what he saw as too much news coverage: "All of our young people are not burning up their draft cards. All of our young people are not tearing up the flag. All of our youth are not supporting North Vietnam and carrying Viet Cong flags." In October 1967 at a rally in support of the government a news photograph was snapped of a man kissing his draft card, his girlfriend smiling at his side. In Playboy
Playboy
Playboy is an American men's magazine that features photographs of nude women as well as journalism and fiction. It was founded in Chicago in 1953 by Hugh Hefner and his associates, and funded in part by a $1,000 loan from Hefner's mother. The magazine has grown into Playboy Enterprises, Inc., with...
s November 1967 issue, Playboy Playmate Kaya Christian wrote that her "turn-offs" were "hypocrites" and "draft card burners".
Leftist Ramparts
Ramparts (magazine)
Ramparts was an American political and literary magazine, published from 1962 through 1975.-History:Founded by Edward M. Keating as a Catholic literary quarterly, the magazine became closely associated with the New Left after executive editor Warren Hinckle hired Robert Scheer as managing editor...
magazine showed four draft cards being burned on the December 1967 cover. The Saturday Evening Post
The Saturday Evening Post
The Saturday Evening Post is a bimonthly American magazine. It was published weekly under this title from 1897 until 1969, and quarterly and then bimonthly from 1971.-History:...
, a conservative publication, put an image of draft card burning on their cover, January 27, 1968. In 1967 off-Broadway
Off-Broadway
Off-Broadway theater is a term for a professional venue in New York City with a seating capacity between 100 and 499, and for a specific production of a play, musical or revue that appears in such a venue, and which adheres to related trade union and other contracts...
and 1968 on Broadway
Broadway theatre
Broadway theatre, commonly called simply Broadway, refers to theatrical performances presented in one of the 40 professional theatres with 500 or more seats located in the Theatre District centered along Broadway, and in Lincoln Center, in Manhattan in New York City...
and in London's West End
West End theatre
West End theatre is a popular term for mainstream professional theatre staged in the large theatres of London's 'Theatreland', the West End. Along with New York's Broadway theatre, West End theatre is usually considered to represent the highest level of commercial theatre in the English speaking...
, the musical Hair
Hair (musical)
Hair: The American Tribal Love-Rock Musical is a rock musical with a book and lyrics by James Rado and Gerome Ragni and music by Galt MacDermot. A product of the hippie counter-culture and sexual revolution of the 1960s, several of its songs became anthems of the anti-Vietnam War peace movement...
featured a climactic scene in Act I of a group of men in a hippie "tribe" burning their draft cards while the main character Claude struggles with the decision to join them.
President Johnson spoke strongly against the draft-card protesters, saying in October 1967 that he wanted the "antidraft movement" investigated for Communist influences. Reporting on his reaction, The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
presented the protests as being against the draft rather than the war. Many commentators focused on draft resistance as an explanation rather than the more challenging war resistance: the main concern of the protesters. In 1968 when Richard Nixon was running for election against Johnson, he determined that he could gain supporters on both sides of the war question by promising to abolish the draft, promising to make the military into a purely volunteer force
Volunteer military
A volunteer military or all-volunteer military is one which derives its manpower from volunteers rather than conscription or mandatory service. A country may offer attractive pay and benefits through military recruitment to attract volunteers...
. In this he was following others who had suggested such a strategy, including Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
of the Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
Wednesday Group the year before. After gaining the presidency—twice—Nixon finally stopped the draft after February 1973. The last man to be drafted entered the U.S. Army on June 30, 1973.
