U.S. Supreme Court During the War

The Vietnam War’s length and controversial nature raised various constitutional questions. Appeals to the Supreme Court included cases pertaining to the freedom of speech, the relationship between the free exercise clause and military conscription, freedom of the press, and the constitutionality of the U.S. military effort in Vietnam. In some cases, the Court established new precedents and in others, refused to accept a case, often citing the doctrine of political questions.

The Supreme Court’s actions on Vietnam War-related cases established major precedents regarding the freedoms of speech, press, and religion and the powers of Congress and the president to conduct foreign and defense policies.

The Vietnam War’s length and controversial nature raised various constitutional questions. Appeals to the Supreme Court included cases pertaining to the freedom of speech, the relationship between the free exercise clause and military conscription, freedom of the press, and the constitutionality of the U.S. military effort in Vietnam. In some cases, the Court established new precedents and in others, refused to accept a case, often citing the doctrine of political questions.

Freedom of Speech

The Court decisions about the Vietnam War that had the broadest, most long-term effects were those that pertained to the freedom of speech. During antiwar demonstrations obscenities and symbolic actions were sometimes used to communicate opposition to the Vietnam War. In United States v. O’Brien (1968), the Court, by a vote of seven to one, ruled against David O’Brien, who had been convicted of violating a federal conscript law by burning his draft card in a symbolic protest. O’Brien claimed that his conviction violated his freedom of speech. The majority opinion, written by Chief Justice Earl Warren, stated that Congress has broad constitutional powers to raise and maintain armed forces, including the process of conscription, which encompasses draft cards. More significantly, O’Brien’s long-term impact was to place certain restrictions on the freedom of speech, especially when litigants claimed that their symbolic actions were protected by the freedom of speech.

One year later, however, the Court ruled in favor of high school and junior high school students who used symbolism to protest against the Vietnam War in Tinker v. Des Moines Independent Community School District (1969). The Tinker children and other students wore arm bands with peace symbols to silently protest the Vietnam War despite the fact that school officials had previously forbidden them to do so. These students were suspended unless they returned to school without the arm bands. The students asserted that this punishment and policy violated their freedom of speech. By a vote of seven to two, the Court ruled in favor of the protesting students. The Court stated that public school students retained their freedom of speech rights as long as their use of speech did not prove to be disruptive. Also, the majority opinion noted that school officials in this district had previously allowed other forms of symbolic political expressions, such as campaign buttons. Therefore, the disciplinary action against students wearing antiwar arm bands seemed to be directed against symbolic protest against the Vietnam War rather than against any student’s use of any symbol of political speech.

What was somewhat surprising in the Tinker case was the dissenting opinion of Justice Hugo L. Black. Earlier in his career on the Court, Black was often identified as an absolutist in his support of the freedom of speech; that is, he took the view that government policies should not limit “balanced” speech, at least oral speech, in any way. In Tinker, however, Black asserted that symbolic actions such as this had less protection under the First Amendment and that school officials needed to have broad discretionary authority to prevent, prohibit, and punish expressions that they believed could be disruptive.

In Cohen v. California (1971), the Court had to address Paul Cohen’s symbolic protest against the Vietnam War in general and the draft in particular, in which he printed the words “F–k the draft” on his jacket. The state of California convicted him for violating a state law prohibiting “disturbing the peace … by offensive conduct.” The long-term significance of this decision was the definition of obscenity concerning First Amendment protection. The Court ruled in favor of Cohen, stating that Cohen’s profanity was “vulgar” but not obscene because its purpose was to convey a political message. Asserting the value of political speech for constitutional protest, the Court ruled that states cannot prohibit and punish such provocative speech and that such speech should not be perceived and punished as an incitement to possible future violent actions. The Court further expanded the freedom of speech-related antiwar expressions by ruling in Flower v. United States (1972) that the military could not prohibit antiwar activists from accessing military bases that are open to the public.

Chief Justice Earl Warren. (Supreme Court Historical Society)

The Draft

Although the Court, with the prominent exception of the O’Brien decision, generally ruled in favor of expressions of antiwar opinions, it also expanded and diversified military draft exemptions based on the free exercise and establishment clauses of the First Amendment. Before the Vietnam War, the Court had generally deferred to and closely adhered to the few, limited, specific religious reasons why a person would be designated as a conscientious objector, and therefore, exempted from being drafted into the armed forces.

Although Congress had apparently intended conscientious objector exemptions to be primarily applied to members of pacifistic denominations, such as the Quaker and Amish churches, the Court ruled in United States v. Seeger (1965) and Welsh v. United States (1970) that agnostics who demonstrated a sincere, consistent philosophy of opposition to war should also be granted conscientious objector status. In its most famous Vietnam War-era draft case, the Court ruled in favor of the famous professional boxer Muhammad Ali, formerly known as Cassius Clay. Ali claimed that he should be exempt from the draft as a conscientious objector because of his Nation of Islam (Black Muslim) beliefs. In Clay v. United States (1971), the Court ruled in his favor.

After expanding and diversifying legitimate grounds for conscientious objector status, the Court further clarified, and then limited this expansion in Gillette v. United States (1971). In Gillette, the Court rejected the claim of conscientious objector status for a man who cited the Roman Catholic doctrine of the just-war theory, that is, that a Catholic should refuse to participate in unjust wars. Gillette asserted his belief that the Vietnam War was an unjust war. The Court concluded that Congress did not violate the establishment clause or Gillette’s free exercise rights by refusing to allow draft-eligible men to choose which wars they would participate in according to their professed religious or philosophical beliefs.

Other Issues

The most significant Court decision about the relationship between the Vietnam War and freedom of speech was New York Times Co. v. United States (1971), commonly known as the Pentagon Papers case. Daniel Ellsberg, an antiwar former employee of the Pentagon (the Department of Defense), provided several newspapers, including The New York Times, with copies of the documentary history of U.S. foreign and defense policy toward Vietnam. The administration of Richard M. Nixon tried to prevent the publication of the Pentagon Papers, but the Court allowed their publication. The Court concluded that the Nixon administration failed to prove that publishing such papers would endanger current or future national security.

Although the Court generally strengthened the protection of First Amendment freedoms in the cases related to the Vietnam War, it repeatedly refused to rule on the war’s constitutionality. Although Congress had never declared war against North Vietnam, it did adopt the Gulf of Tonkin Resolution of 1964, a joint resolution that gave the president broad, discretionary power to conduct war in Southeast Asia. The Court refused to grant writs of certiorari and review the lower court cases of Holtzman v. Schlesinger (1973), Orlando v. Laird (1971), Mora v. McNamara (1967), and Massachusetts v. Laird (1970), all of which challenged the constitutionality of the Vietnam War.

Associate Justice William O. Douglas was the most emphatic, determined justice who wanted the Court to grant certiorari and rule on the constitutionality of the Vietnam War. He took the unusual action of writing an opinion criticizing the Court’s denial of certiorari in Massachusetts v. Laird. However, most justices believed that the existence and conduct of the war were political questions, that is, specific policies and political issues that were not justiciable by the courts because they should be resolved within and between the other two branches of the national government.

The constitutional legacy of major Court decisions related to the Vietnam War is that they provided important, influential precedents for future cases, especially for freedom of speech cases that did not pertain to expressions of protest over foreign and defense policy. For example, the Court partially relied on the O’Brien precedent to uphold a public indecency and nudity law in Barnes v. Glen Theatre (1991). In Barnes, the majority opinion concluded that the O’Brien precedent for limiting First Amendment protection of expressive conduct justified state laws prohibiting entirely nude exotic dancing in bars, just as the Court had ruled in Cohen that Cohen’s use of an expletive to criticize the Vietnam War era draft was not an incitement. According to the Chaplinsky v. New Hampshire (1942) “fighting words” precedent, the Court ruled in Texas v. Johnson (1989) that burning or desecrating the U.S. flag did not represent an incitement either.

Regarding the more specific issues of whether public or congressional acts of opposition to certain U.S. foreign policy decisions are unconstitutional, the Court has generally followed the Vietnam War-era practice of holding such disputes to be nonjusticiable political questions. In Goldwater v. Carter (1979), several members of Congress unsuccessfully challenged the constitutionality of President Jimmy Carter’s decision to terminate a treaty with Taiwan without obtaining the advice or consent of the Senate.