United States v. Spock

• Decision Date: 11 July 1969
• Docket Number: No. 7205-7208.,7205-7208.
• Parties: UNITED STATES of America, Appellee, v. Benjamin SPOCK, Defendant, Appellant. UNITED STATES of America, Appellee, v. Michael FERBER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mitchell GOODMAN, Defendant, Appellant. UNITED STATES of America, Appellee, v. William Sloane COFFIN, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

416 F.2d 165 (1969)

UNITED STATES of America, Appellee, v. Benjamin SPOCK, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Michael FERBER, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Mitchell GOODMAN, Defendant, Appellant.

UNITED STATES of America, Appellee, v. William Sloane COFFIN, Jr., Defendant, Appellant.

Nos. 7205-7208.

United States Court of Appeals First Circuit.

Heard January 7, 1969.

Decided July 11, 1969.

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Leonard B. Boudin, New York City, with whom Victor Rabinowitz, New York City, Allan R. Rosenberg, Boston, Mass., David Rosenberg, Dorian Bowman, Diane B. Schulder, Rabinowitz, Boudin & Standard, New York City, and Putnam, Bell & Russell, Boston, Mass., were on brief, for Benjamin Spock, appellant.

William P. Homans, Jr., Boston, Mass., with whom Raymond H. Young, Boston, Mass., was on brief, for Michael Ferber, appellant.

Edward J. Barshak, Boston, Mass., with whom Bertram A. Sugarman, Sumner H. Rogers and Steven James Cohen, Boston, Mass., were on brief, for Mitchell Goodman, appellant.

Arthur J. Goldberg, New York City, with whom Abraham Goldstein, New York City, James D. St. Clair, Wellesley Hills, Mass., Jay H. Topkis, Joseph H. Einstein and Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, were on brief, for William Sloane Coffin, Jr., appellant.

Marshall Tamor Golding, Atty., Dept. of Justice, with whom Fred M. Vinson, Jr., Asst. Atty. Gen., Paul F. Markham, U. S. Atty., John Wall, Asst. U. S. Atty., and Joseph J. Cella, Jr., Sp. Asst. U. S. Atty., were on brief, for appellee.

Frank B. Frederick, William B. Duffy, Jr., Henry P. Monaghan and Johnson, Clapp, Ives & King, Boston, Mass., on brief for Unitarian Universalist Ass'n, amicus curiae.

Malcolm Monroe, New York City, on brief for National Committee for a SANE Nuclear Policy, amicus curiae.

Arthur Kinoy, William M. Kunstler, New York City, Morton Stavis, Rita Murphy, Dennis J. Roberts, Harriet Van Tassel, Newark, N. J., Robert L. Boehm, New York City, and Lester S. Cramer, Boston, Mass., on brief for The Lawyers Committee on American Policy in Vietnam and The Law Center for Constitutional Rights, amici curiae.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

These are appeals by four defendants¹ convicted under a single count indictment for conspiracy. We reverse.

As is well known, the war in Vietnam and the draft to support it have engendered considerable animosity and frustration. In August 1967 a number of academic, clerical, and professional persons discussed the need of more vigorous opposition to governmental policies. From their eventually consolidated efforts came a document entitled "A Call to Resist Illegitimate Authority" (hereinafter the Call) and a cover letter requesting signatures and support. The letter was signed by defendant Dr. Benjamin Spock and defendant Rev. William Sloane Coffin, Jr., and two other persons. The Call was originally signed by them, numerous others, and eventually by hundreds. The defendant Mitchell Goodman had been preparing a somewhat similar statement against the war and the draft. In mid-September he learned of the Call, which he also signed. He, Coffin, Spock and others spoke on October 2 at a press conference in New York City to launch the Call. It was there announced by Goodman that further activities were contemplated, including a nationwide collection of draft cards and a ceremonial surrender thereof to the Attorney General. On October 16 a draft card burning and turn-in took place at the Arlington Street Church in Boston, arranged by the defendant Michael Ferber, and participated in by Coffin. Four days afterwards all four defendants attended a demonstration in Washington, in the course of which an unsuccessful attempt was made to present the fruits of that collection and similar gatherings to the Attorney General.² The details of these matters will be discussed later.

The indictment was framed under section 12 of the Military Selective Service Act of 1967, 50 App. U.S.C. § 462(a). It charged that defendants, and others known and unknown, conspired to "counsel, aid and abet diverse Selective Service registrants to * * * neglect, fail, refuse and evade service in the armed forces of the United States and all other duties required of registrants under the Universal Military Training and Service Act * * * and the rules, regulations and directions duly made pursuant to said Act * * * to * * * fail and refuse to have in their personal possession at all times their registration certificates and * * * valid notices of classification³ and conspired to * * * unlawfully, willfully and knowingly hinder and interfere, by any means, with the administration of the Universal Military Training and Service Act."⁴ The case was tried to a jury, which answered special questions framed by the court, most answers being unfavorable to the defendants, and returned general verdicts of guilty. On this appeal defendants raise a number of issues, the most basic of which is their asserted right to directed acquittals, either because of constitutional immunity or because the government failed in its proof. We consider these contentions in that order.

I

Inseparable from the question of the sufficiency of the evidence to convict are the rights of the defendants, and others,⁵ under the First Amendment. We approach the constitutional problem on the assumption, which we will later support, that the ultimate objective of defendants' alleged agreement, viz., the expression of opposition to the war and the draft, was legal, but that the means or intermediate objectives encompassed both legal and illegal activity without any clear indication, initially, as to who intended what. This intertwining of legal and illegal aspects, the public setting of the agreement and its political purposes, and the loose confederation of possibly innocent and possibly guilty participants raise the most serious First Amendment problems. Indeed our Brother Coffin, in dissent,⁶ admits to a temptation "to say that the law should recognize no overt conspiracy in the sensitive area of public opinion." This temptation leads him down paths that we cannot follow, but which, nevertheless, we must consider.

As the defendants point out, most conspiracies are secret. To argue from this, however, that illegality presupposes secrecy is to confuse means with ends. Illegality normally seeks cover, but conspirators may act openly or not, as best suits their purpose. Here the defendants' primary object was publicity, and their conduct was designedly open. No one before has suggested that this fact, or the concomitant warning to the government of impending danger, requires that the government's hand be stayed until the substantive offense is committed.⁷ Contrary to the defendants' position, many "public" conspiracies have been successfully prosecuted. A case remarkably similar is Fraina v. United States, 2 Cir., 1918, 255 F. 28. There two defendants were charged with conspiring, together with persons unknown, to aid, abet and counsel divers unknown persons to evade and neglect the requirements of the then Selective Service Act. The overt acts alleged were the organizing of a mass meeting and the distribution of pamphlets entitled "Conscientious Objectors" (who proved to be "nonreligious conscientious objectors" whose "idealism compels them to decline all forms of military service.") The opinion affirming the convictions touches many aspects of the case at bar in addition to the matter of publicity.⁸

That openness does not immunize an agreement may be demonstrated by an example. A group of vigilantes agreeing in the town square to solicit cohorts to call out a lynch mob would not be absolved because their agreement was open. Nor should their agreement be protected by the First Amendment if, at the same time, they were engaging in free speech on the evils of their victim's alleged offense; nor, indeed, because their principal object was the proper one of deterring such offenses. The dissent's finding the present agreement pasteurized because it was exposed to the light is in effect granting a right to public association which is not given free speech itself. Cox v. Louisiana, 1965, 379 U.S. 559, 563-564, 85 S.Ct. 476, 13 L.Ed.2d 487; Giboney v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 501-502, 69 S.Ct. 684, 93 L.Ed. 834. Lack of arcana cannot be determinative.⁹

Admittedly, the First Amendment rights of free speech and free association, see, e. g., Elfbrandt v. Russell, 1966, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; NAACP v. Alabama, 1958, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488, are of such importance that they must prevail if the government's interest in deterring substantive crimes before they take place¹⁰ is insubstantial, or there is a "less restrictive alternative" by which the substantive evil may be prevented. United States v. Robel, 1967, 389 U.S. 258, 265-268, 88 S.Ct. 419, 19 L.Ed.2d 508; Aptheker v. Secretary of State, 1964, 378 U.S. 500, 512-514, 84 S.Ct. 1659, 12 L.Ed.2d 992; Shelton v. Tucker, 1960, 364 U.S. 479, 488-489, 81 S.Ct. 247, 5 L.Ed.2d 231. This calls for a weighing. In Aptheker the Court struck down the broad Congressional proscription against issuing passports to Communists only after considering the availability and adequacy of other security measures, one actually proposed by the President. In defendants' much emphasized case of New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 279-283, 84 S.Ct. 710, 11 L.Ed.2d 686, not all public discussion was held protected; immunity was denied speakers motivated by "actual malice."

In comparing the present private and public interests we start with the assumption that the defendants were not to be prevented from vigorous criticism of the government's program merely because the natural consequences might be to interfere with it, or even to lead to...