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February 03, 1966 - Image 4

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The Michigan Daily, 1966-02-03

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Seventy-sixth Year

Sit-In Case: Unanswered Questions

4mqmllmwqM-'*0- - - -rm ,

er Opinions Are Free.
Truh Wll ~ evtil 420 MAY'NARD ST., ANN ARBOR, Mfiut.

NEws PHONE: 764-0552

Editorials printed in The Michigan Daily express the individual opinions of staff writers
or the editors. This must be noted in all reprints.



Despite Renewed Bombing
Peace Offensive Continues

ALTHOUGH AMERICAN bombs are once.
again falling on North Viet Nam, it is
clear that the U.S. "peace offensive" is
not yet over.
A final effort is being made to secure
peace negotiations through the United,
Nations Security Council. Although the
success of this new venture is still in
doubt, the Johnson administration has
apparently not abandoned all hopes for
a peace conference.
The wisdom of resuming the air strikes
at this time is questionable, since the
bombing has not really been militarily
effective in the past and probably will
not be now. Many non-aligned diplomats
will undoubtedly be further alienated by
the attacks. However, North Viet Nam
has stepped up its infiltration to the
south, and perhaps the bombings can
be used to help prevent a change in the
military equilibrium in favor of Hanoi.
THE SINCERITY of the "peace offen-
sive" seems clear, since many contacts
were made with the Hanoi government,
both direct and through third parties.
None of these contacts managed to net
any positive results.
Furthermore, according to the British
(who have not been noted for their en-
thusiasm over our Viet Nam policy), the
Ho Chi Minh regime has attached new,
unacceptable preconditions for the start
of peace talks.
A letter sent by Ho to a number of gov-
ernments, including the British, states
that the National Liberation Front must
be recognized as the "sole representa-
tive" of the South Vietnamese people.
THE NLF, while it may have solid sup-
port among many groups in South
Viet Nam, especially among the peas-

ants, has no right, either political or
moral, to demand such a condition. Even
the U.S., whose motives in the war have
been subject to grave doubts in the past,
now emphasizes that its primary aim is
to ensure the self-determination of the
South Vietnamese people, free from ter-
rorism and military coercion.
In addition, much of the NLF support
has been bought at the point of a gun.
Reports from Saigon indicate that many
of its backers are now wavering in their
loyalty. The Viet Cong has resorted to
conscription of 15-year-old boys as well
as increasingly harsh terroristic tactics
in an effort to maintain their control
over a portion of the country.
ginning talks through the United Na-
tions? Unfortunately, the Security Coun-
cil debate may turn into a propaganda
exercise, with the U.S. on one side and
the Soviet Union, anxious to demonstrate
its support for an ally, on the other.
Nevertheless, the U.S. must seek to
garner additional support for its posi-
tion within the UN. Perhaps only the
pressure of all the world's major powers.
-even Russia, which would probably pre-
fer an end to hostilities in order to con-
centrate on domestic economic progress
-would be sufficient to bring Hanoi to
the conference table.
Many months may pass, accompanied
by heavy U.S. casualties on the battle-
fields, before a cease-fire can be secured.
But a persistent effort within the UN
and through non-aligned nations with
missions to Hanoi looks like the only pos-
sible road to a solution of what is prob-
ably the most frustrating international
crisis faced by the U.S. in the past decade.

THE APPEAL case of the 29 draft
board sit-ins who were sen-
tenced Tuesday in Circuit Court,
as outlined in the pre-trial nem-
orandum of law by defense at-
torney Ernest Goodman, is an at-
tempt to extend the protection of
the First Amendment governing
free expression only slightly be-
yond the limits now established
by the Supreme Court.
However this slight extension,
as it would apply to trespass cases
could have a significant effect on
the nature of protest in this coun-
It is the first part of Goodman's
case, concerning the protest as a
form of speech, that is the most
significant in this respect. He
argues first that a sit-in is a
form of speech.
AS A PRECEDENT he cites sev-
eral examples in which non-ver-
bal activity such as pickets
Thornhill vs. Alabama, 1940) and
sit-ins inthe South against racial
discrimination, where trespass
laws were violated and the con-
victions invalidated by the Su-
preme Court.
Goodman argues further, that
in. cases where "labels" were at-
tachedsto certain actions which
rendered them in violation of state
laws, the Supreme Court has ruled
that, in the interests of "uninhib-
ited, robust and wide open"d
bate, thesetactions were legal un-
der the protection of the First
The case used to illustrate this
point was one in which the New
York Times had unintentionally
libeled a public official named
Sullivan. Although the Times had
violated the state law prohibiting
libel, the Supreme Court reversed
the conviction on the grounds that
criticism of public officials in the
name of the First Amendment
must be as free as possible.
The specific statement by the
Court was:
In deciding the question now
we are compelled by neither
precedent nor policies to give
any more weight to epithet "li-
bel" than we have to other
"mere labels" of state law.
Goodman says, concerning this
case, "By analogy, the character-
ization of the defendants' pro-
test as a trespass does not au-
tomatically remove it from First
Amendment protection.
OBJECTIONS to this line of
reasoning have pointed out that
the sit-ins in the South were vio-
lations of an illegal state law
which thwarted federal laws pro-
hibiting discrimination. The draft
board sit-in, on the other hand,
violated a state law which was
not illegal, which did not conflict
with federal laws.
Nevertheless, Goodman's state-
ment specifically cites the New
York Times case in which a con-
viction was invalidated although
the state law was, indeed, legal.
This reasoning raises several
important questions which any
court rendering a decision in the
demonstrators' case will have to
consider. First, as the Supreme

court decision in New York Times
bompany vs. Sullivan points out,
there is a problem of definition of
violations such as "libel" and
"trespass, "(over and above the
specific definitions in state laws)
with respect to the intent of the
actionand, even, the ends to-
ward which it was committed.
Also, there is a problem of how
lenient the court can be in its
definition and application of state
laws when actions are committed
specifically in the name of free
speech. In other words, should
this constitutional right be given
special consideration.
ASSUMING, however, that the
Supreme Court is willing to ex-
tend First Amendment protec-
tion to this form of protest, ser-
ious objections could still be rais-
ed concerning the possible out-
come of such a move, especially
with regard to the protection of
private property.
Goodman acknowledges in his
brief that:
"There may be, of course, a
competing interest when con-
sidering the scope of protection
of the First Amendment to
forms of speech, ie. the inter-
est of the government in con-
ducting its business in an or-
derly fashion and the right of
the owner to control his private
Goodman notes, however, that
there have been several cases in
which the courts have balanced
these two interests when they
came into conflict. One of the
conditions set by court decisions is
the "appropriateness of the Civil
Protest in the light of the specif-
ic end being sought and the alter-
natives available." Goodman ar-
gues that the draft board was the
appropriate object of protest be-
cause of its role in furthering the
war, and that other alternatives
had been used extensively (teach-
ins. meetings, pickets) without ef-
Another factor cited was the
injury, if any, that had occurred as
a result of the protest. Goodman
says that in this case none had
occurred because the operation of
the draftbboard was not halted.
It was only necessary to arrest
them for trespass when the office
closed and the owner wished to
assume complete control of his
THE DEFENSE brief maintains
that when these two interests
come into conflict, the right to
free speech should prevail. Again
the case of New York Times Com-
pany vs. Sullivan can be cited as
a precedent in which "criticism
of public officials, even though it
may be false and defamatory, is
protected, by the First Amend-
ment as ap ed through the Four-
teenth Amendment."
Two other cases (Shelley vs.
Kramer and Barrow vs. Jackson)
illustrate a third point of Good-
man's argument. In these cases
the Supreme Court held that the
state cannot enforce the rights of
private contract when these rights
are used to deny citizens other
constitutional rights. He concludes
that the nature of the protestors'

case prohibits the state from us-
ing the trespass statute as it sup-
presses their right to protest.
One could ask at this point:
Does this mean that every draft
board in the country can be over-
run with sit-ins? Obviously not.
The Supreme Court has been ex-
plicit in its rulings on peaceful
protest and specific intent with
regard to violations. It has stat-
ed that this activity is protected
by the First Amendment, "unless
actual malice is proved."
ANOTHER consideration, with
respect to the New York Times
case, is that .a newspaper is a
recognized social institution with
unquestioned legitimacy and im-
portance. A free press is obvious-
ly necessary for the preservation
of free speech. But what of an
organization, protesting one par-
ticular issue, which may not even
have widespread support?
Recognition of the sit-in as a

legal activity could possibly be
construed as giving legitimacy,
equal to that of the press, to
groups and actions which may
not be important for the main-
tenance of free speech. Princi-
ples of recognition of the minor-
ity and giving a voice to dissent
would counter this, however, with-
out at the same time giving legi-
timacy and importance to insig-
nificant groups. In addition, pro-
test concerning the war in Viet
Nam is hardly insignificant.
One last consideration is that
the case in asking that the con-
viction for trespassing be over-
turned, contradicts the principle
of nonviolent civil disobedience,
in which one breaks a minor law
for the purpose of furthering a
higher morality and is willing to
accept the consequences.
Goodman contends that he is
asking that each case of civil dis-
obedience be considered on its
own merits. The primary purpose

of such actions are to publicize
a certain point of view and the
violation of a law is only an in-
cidental consequence. The laws
most commonly broken by civil
disobedience activities are minor
statutes relating to keeping the
THEREFORE, there are several
debatable issues involved in this
case, and profound questions con-
cerning the implications of a court
decision. If the conviction of the
protestors is upheld by a higher
court, the present status of sit-
in demonstrations would prob-
ably remain essentially unchang-
ed. If the conviction is reversed,
the court involved will have to
place stipulations and interpreta-
tions on many aspects of the case
to protectinterests other than
free speech. In all probability,
such decisions will have to be
made by the body with the high-
est judicial authority, the Su-
preme Court.



r . '4










" '" '





A Crack in Civil Liberties


aw Thlbu8y4'

AT FIRST GLANCE it's ironic-Ameri-
cans being punished for exercising
their civil liberties protesting a "war to
keep a nation free." But after this irony
has sunk in, it reveals yet another crack
in the United State's vaunted tradition
of civil liberties.
Our political freedoms, supposedly in-
sured to all citizens as inalienable rights,
too often turn out to be only those which
can be wrested from the centers of poli-
tical power, wrested in spite of a gov-
ernment's attempts to quell the efforts.
The Ann Arbor protestors, of course,
provide the most recent example. Com-
mitting an act which displeased the Se-
lective Service power princes, many were
subsequently reclassified. The irony and
hypocrisy is obvious in that the Selec-
tive Service is the apparatus that pro-
vides the manpower for a war claimed to
protect a country's freedom.
GEN. HERSHEY showed, by his state-
rnent that the transgressors must be
punished with a sound paternal spank-
ing, a good sized ignorance of the free-
doms he (or to be more truthful, his or-
ganization) has a stake in protecting.
But disregarding the symbolic signifi-
cance, the incident still illustrates that
our freedoms too often are given lip
service while ignored in practice.
Even more absurd in its irony -'and
more disheartening--is the treatment of
civil rights workers in the South in the
past few years. The governors -complain
of the federal government's disregard
for state's rights on one hand, while they
aid or allow flagrant violation of rights
workers' civil liberties, civil rights and
right of freedom from violence. Luckily,
the South is not characteristic of the
United States as a whole.
Editorial Staff
JUDITH FIELDS............. Personnel Director
LAUREN BAHR......... Associate Managing Editor
JUDITH WARREN......AssistaAnt Managing Editor
:AIL BLUMBERG ............. Magazine Editor
TOM WEINBERG ................Sports Editor
LLOYD GRAFF......... Associate sports Editor
PETER SARASOHN.......Contributing Editor
NIGHT EDITORS: Robert Carney, Clarence Fanto,
Mark Killingsworth, John Meredith, Leonard Pratt,
Harvey Wasserman, Bruce Wasserstein, Oharlotte.
DAY EDITORS: Babette Cohn, Michael Hefter, Merle

Other illustrations abound in Ameri-
can history. The most famous ones of
this century involve Americans' morbid
fear of Communism. McCarthy is a spec-
tacular example-poisoning a tradition
of freedom while hunting for "freedom
killers." Another brilliant precedent fol-
lowed the First World War-the war to
make the world safe for democracy. This
armagedon failed to make the United
States entirely safe for democracy, as
witness A. Mitchell Palmer's redwitch-
hunt at the start of the twenties.
THESE EXAMPLES are by no means an
across-the-board indictment of the
American political system-it remains by
and large the most enlightened one on
this earth. But it does show that its pre-
cious core of liberties must be protected
from attack from within, even as the at-
tackers often claim to be preventing de-
struction from without.
Arlington Burial?
THE PENTAGON'S announcement last
week that Robert Thompson, a decor-
ated veteran, could not be buried in Ar-
lington National Cemetery illustrates the
pettiness of "thinking" which is taking
place at Foggy Bottom these days.
Why was Thompson denied this honor?
According to the official explanation, he
was ineligible because of a five-year pris-
on term served for alleged Communist
The explanation did not mention that
a World War II prisoner of war, a Nazi,
is buried in Arlington. He died while a
POW near Washington. According to a
federal law, POW's who die must be bur-
ied at the nearest federal cemetery, which
turned out to be Arlington. Thus, an in-
dividual who served his country well dur-
ing time of war is denied burial there
while a Nazi POW is placed there without
If these are the standards used by the
Pentagon to decide who shall gain entry
to the hallowed burial ground, perhaps
wry chrnl 3nPoon nnovinv hnLn to Arhna..-

'Peace efforts will continue even though the bombings
are resumed.'


Goals Greater Than M litary Capacity

in North Viet Nam is not a
surprise, indeed, it has been in-
evitable since the diplomatic con-
tent of the peace offensive was
set. For on neither side has there
been any overt effort to find the
terms of a truce which reflect
correctly the actual military sit-
On both sides there has been
some suggestion of softening the
demands a little. But the basic
objective of our adversaries re-
remains the ascendancy of the
Viet Cong in South Viet Nam-
and our basic objective, as artic-
ulated repeatedly by Secretary of
State Dean Rusk, is the liquida-
tion of the Viet Cong and the as-
cendancy of Gen. Ky and his
successors in Saigon.
The whole worldwide attempt to
end the fighting by negotiations
is stalled on this disparity. The
essential fact about the conflict
of aims is that each side has a
political objective which is beyond
its military capacity.
Insofar as Hanoi and more cer-
tainly Peking are demanding the

withdrawal of the United States
forces before there is a political
settlement in Indochina, they are
demanding more than they have
the military power to achieve.
The U.S. is able to stand fast
and hold on.
as we are tied to Secretary Rusk's
objectives, to defeat and elimi-
nate the Viet Cong, to keep the
2800 villages permanently secured
against the Viet Cong and to
create a government in Saigon
that, without being an American
colonial government, is the ruler
of the whole of South Viet Nam
-insofar as these are our pur-
poses in Viet Nam-we are fight-
ing a war which is far beyond our
or anyone else's military and poli-
tical capacity.
The search for peace, to which
the President rededicated himself
as he announced the end of the
bombing pause, will succeed or fail
as we and they bring war aims
into balance with military capa-
This will certainly not be done

simultaneously by both sides. But
if one sides makes the first move,
it will be difficult for the other
not to follow suit.
Thus, if Hanoi says clearly,
what it has hinted at vaguely,
that the American forces need
not withdraw before negotiations
bring about an agreed settlement,
it would be difficult, indeed im-
possible in the long run, for the
administration to deny that the
Viet Cong must, in fact, be a
principal party to a negotiated

IT IS ALSO within our power
to break the deadlock which has-
caused the peace offensive to fail.
And as we are the stronger pow-
er, the more invulnerable, it is
both our duty and to our interest
to take the initiative.
No one, I suppose, imagines any
longer that the deadlock can be.
broken by lbombing, by a little
bombing or by a lot of bombing.
And there are few, observers of
the war who think that the dead-
lock can be broken by doubling
or tripling our forces.
The way to break the deadlock
is to adopt a military strategy
which, because it has a limited
objective, can be made to prevail
by limited means. Thus, when and
if we move to a holding strategy,
we shall have revised and reduced
our war aims to something more
modest, but more credible than

Rusk's unattainable pursuit of the
independence of the whole of
South Viet Nam under Gen. Ky
and his successors in Saigon.
I regard both the bombing pause
and the resumption of the bomb-
ing as irrelevant to the real prob-
lei, which is how to make a truce
which is consistent with the mil-
itary realities. Some will say that
by more and bigger bombing and
by ar big build-up of' troops we
shall be Able to change the mili-
tary realities in our favor.
EXPERIENCE and the history
of this wretched war are against
that hope. For the forces against
us can be increased indefinitely,
and the notion of a decisive mill-
tary superiority over the land
powers of Asia is a dangerous fan-
(c), 1966, The Washington Post Co.



Letters: Is the Military
Enough in Viet Nam?

To the Editor:
THANKS TO Randy Frost for
answering the arguments I ex-
pressed to him, by way of his
"appendixed" editorial in Tues-
day's Daily.
May I ask one question, how-
ever? If he agrees that the way
to stop Communist governments
from forming in underdeveloped
countries is to remove the sourc-
es of political-economic instabil-

claims of the minority?-or that
of the minority which could win
only because it had fighting for it
the mightiest nation on earth?)
I WOULD appreciate an answer
to this question, either by pub-
lished or private communication,
since your entire Sunday editorial
depended upon it.
-Paul Bernstein, '66

west Passage, narrator Lang-
don Towne describes the merri-
ment he produced by treating a
gathering of friends to hot but-
tered rum and original caricatures
of the Harvard College Overseers
in his undergraduate abode one
"To persons slightly in liquor,"
Langdon observed self conscious-
ly," "matters of little humor can
seem irresistibly droll; and this
was the case now. As the figures
developed, my audience howled
and slapped themselves, rolling on
the floor with uncontrollable
mirth; and I, too, felt I was pro-
ducing a masterpiece of comical-

REGENTS ARE eminences grises
to be dealt with only in direly
serious editorial comment or des-
perately active public demonstra-
tion. And drinking is a funereal
business attended to meticulously
at organized group assemblies by
convulsively twisty social asso-
Casual comradeship has become
a matter of political loyalty.
Sexual adventure has evolved into
some sort of grim ideological
battlefield. One no longer falls
in love: one keeps a sharp look-
out for potential mates of similar
socio-economic and religious his-
tory with parallel aspiration and
suitable achievement motivation.
Morality herself has grown to be

hood. "Science" is the student's
rifle; "culture" is his hand gre-
nade and "religion" his bayonet.
The savage barbarian host to be
confronted is that dark faceless
army we refer to terribly as "the
other school," attacking from
either the right or the left.
rum rascality has faded into social
obsolescence to be replaced by
today's no-doz-twenty-four-hour-
out clinical corporate realism. The
scholar knows the importance of
forebearance, self containment,
and dedication -to the cause. He
faithfully maintains an eye to
future goals and sternly ignores


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