United States v. Spock

COFFIN, Circuit Judge

(dissenting in part).

I concur in that part of the court’s opinion dealing with the submission of special questions to the jury. However, I would grant acquittals to all appellants, "since, in my view, whatever substantive crimes of aiding, abetting, and counsel-ling, or whatever more specific conspiracies may have been committed, the crime of conspiracy, as charged in the indictment, was not. To apply conspiracy doctrine to these cases is, in my view, not compelled by conspiracy precedents, not consistent with First Amendment principles, not required to deal effectively with the hazard to public security, and not capable of discriminating application as between the culpable and the innocent.

A comparison of the structures of the court’s and of this separate opinion reveals much concerning our differences. The court begins by asking whether there is any reason or authority barring prosecutions for public conspiracy in the speech-opinion field; I begin by asking whether there is reason or authority which compels the application of the conspiracy sanction to the kind of organization, activity, and purposes involved in these cases. The court next identifies the valid public interest in timely self-protection and then addresses the various tests required to safeguard individual rights. I reverse the order at this point, seeking first to identify the hazards to individual freedom of expression and association, then addressing the question whether society can adequately protect its security in less constraining ways. Finally', the court finds, in weighing the evidence, that its guidelines are useful in distinguishing between the culpable conspirator and the protected advocate; I fail to see either the practicable utility of the tests or any basis for treating some of these appellants differently from others.

My starting point is the inquiry: how far has the application of conspiracy doctrine reached into the arena of overt associations involving the expression of opinion on public issues ? Do reason and authority compel its application to a wholly open, amorphous, and shifting association, having a broad focus of interest in changing public policy, and encompassing a wide spectrum of purposes, legal and illegal?

Historically, the doctrine of conspiracy was concerned with only a secret enterprise. Indeed, the word conspiracy devolves from the Latin “conspirare” meaning “to breathe together”. If a group, having illegal designs, desired to achieve its ends through surprise, thus depriving society of open confrontation, assessment, and preparation, it was both fair and necessary to give society the means to deal with it effectively, i. e., the ability to prosecute individuals who may never commit a substantive offense or never be caught in committing one, but whose responsibility for and participation in the enterprise are established. Effective response also meant the ability of the state to act in timely fashion — to forestall a serious threat to its safety and welfare before a debacle occurred. Finally, the core idea underlying the conspiracy theory is that disciplined, concerted action poses a greater threat to society than does individual or uncoordinated group effort in that larger numbers permit a division of labor, and discipline makes withdrawal from the enterprise less likely.1

This reasoning applied to the early plotters against the King; to subversive movements such as the Communist Par*185ty; to classical criminal undertakings such as bank robberies, bribery, and murder; and to certain antitrust violations. Particularly in the latter case was it both reasonable and necessary to give society another instrument — that of using parallel performances as evidence of an underlying illegal agreement.

In the case of public “conspiracies” in the field of opinion, however, the historic rationale for prosecuting the instigators of a group effort loses much of its force. The fact that the group initially places itself at the mercy of the public marketplace of ideas, risking disapproval, recommends that it have the protection of the First Amendment in its effort to gain approval. That a public “agreement” has been arrived at is not so much the genesis of the undertaking or a key to identifying masterminds as it is the manifestation of common concern. There is no possibility of taking society by surprise. There is no difficulty in ascertaining the activists who bear watching.

One is tempted to say that the law should recognize no overt conspiracy in the sensitive area of public discussion and opinion. But this would be to go too far.2 Were this so, “going public” would confer an immunity both on nefarious joint undertakings and an absolute protection to criminal enterprise not vouchsafed by the First Amendment even for individual speech.

Do the cases indicate where the line should be drawn? Of course, closely-knit groups directed at the execution of orthodox criminal enterprises are clearly punishable as conspiracies. See, e. g., Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947). Although there are not many conspiracy cases in the field of opinion, I think it is possible to locate the outer limits of the reach of the conspiracy weapon. The cases closest to the traditional criminal conspiracy are those in which a disciplined, cohesive organization — perhaps more covert than overt — devotes itself with singleness of mind to one illegal purpose.3 Then there are cases where *186a disciplined organization strives to accomplish a number of purposes, some legal and some illegal.4 In both types of cases the conspiracy cannot really be said to be open; and in both the combination is bound together by strict party-like discipline.

Moving along the spectrum to associations which are at once more adventitious and amorphous in structure and wholly overt in their functioning, we find little authority. ' When such a combination has as its objective a specific enterprise devoted to a single illegal purpose, it is possible to concede that a culpable conspiracy has been formed. The planning and execution of the Arlington Street Church draft card turn-in might have been such a conspiracy, assuming that the timing, publicity, and foreseeable impact provided a sufficient basis for finding a high probability of substantial harm. In such a case the participants would have been a discrete group; the objective of the affair would have been illegal (abetting turn-ins); and it might well be that one who planned but did not participate (and thus did not commit a substantive offense of aiding or abetting or counselling) would be indictable as a conspirator.

Such is the hypothetical case put by the court of a lynching-bent group of vigilantes. Openness of course could not pasteurize the illegality of purpose. The example, however, suffers in the limited and subordinate extent to which speech is involved. More apposite to the sharply defined open conspiracy in the free speech area is Fraina v. United States, 255 F. 28 (2d Cir. 1918). The factual situation is close to that which would have been presented by a conspiracy indictment against those responsible for the Arlington Church affair. Even this authority for this narrow proposition is less than robust.5 And we have found no other.

But we face here something quite different from an indictment for an overt promotion of a specific event for an overriding illegal purpose. Here we confront a “conspiracy” where (1) the effort was completely public; (2) the issues were all in the public domain; (3) the group was ill-defined,, shifting, with many affiliations ; (4) the purposes in the “agreement” are both legal and illegal; and (5) the need for additional evidence to inculpate — notwithstanding the absence of a statutory requirement for an overt act — is recognized.

There is no legal precedent for applying the conspiracy theory to such an effort. This is, to my knowledge, the first attempt to use conspiracy as a prosecutorial device in such circumstances. The attempt to distill the several individual lessons taught by prior cases, mostly old, and combine them in such a case as *187this is not to apply precedents but to extend them. I would not — for the first time — grant this weapon to the government in this kind of case without the alternative assurance that hazards to individual rights would not be increased or that the interest in the nation’s well-being and security cannot be as well served in less repressive ways.6 So viewing conspiracy law, I ask whether there are hazards to free expression of opinion in extending conspiracy to the cases at bar. The court has attempted to be scrupulously fair and sensitive to the possibility of abuse of the conspiracy weapon. It carefully rejects the use of “the Call” to jeopardize its signers without the proof of specific intent. And equally carefully it delimits the ways in which specific intent can be established: (1) proof of prior or subsequent unambiguous statements; (2) proof of commission of illegal acts; (3) proof of subsequent legal acts clearly undertaken for rendering effective the advocated illegal action.

By so proceeding, the court goes far to depriving the “agreement” of significance. Indeed, it upholds the indictment as to only one of the original four signers of the “Call” and acquits another original signer.7 But the evil is that such a document is pregnant with any significance at all.

What are the implications of the three methods of activating one’s signature to the “Call” to status as a full-fledged conspirator? To say that prior or subsequent unambiguous statements change the color of the litmus is to say that while one exercise of First Amendment rights is protected, two are not.8 To say that actual commission of illegal acts (i. e., encouraging turning in or burning draft cards — not specifically described in the “Call”) renders culpable the more opaque original “agreement” is to say simply that the subsequent commission of one crime becomes suddenly the commission of two crimes. To say that “subsequent legal acts clearly undertaken for rendering effective the advocated illegal action” [my emphasis] renders retrospectively conspiratorial the earlier protected ambiguous advocacy is to say that two rights make a wrong. For example, were the janitor of Arlington Church to have signed the “Call” and subsequently to have volunteered his services to tidy the pews for the turn-in, he would have metamorphosed into a conspirator.

*188I cannot believe that this delayed fuse approach to determining the conspiratorial culpability of signing a document like the “Call” would have anything other than a pronounced chilling effect — indeed that of a sub-zero blast — on all kinds of efforts to sway public opinion. For example, such diverse groups as Clergy Concerned, a consumers’ boycott of California grapes, a parents’ group for so-called “freedom of choice” plans within a southern school district might find themselves facing a conspiracy indictment. Even if the court’s safeguards were rigorously applied, the ranks of individuals enlisted in a controversial public cause would visibly shrink if they knew that the jury could find them to be members of a conspiracy on the basis of either their subsequent statements or legal acts.

In footnote 12 of the opinion the court recognizes that judicial hostility to conspiracy prosecutions has been occasioned by the government’s overenthusiastic use of the doctrine. That fact coupled with the absence of clear definitions of the elements of conspiracy creates a serious risk. I see no reason to inject that risk into the area of public discussion. Its chilling effect is obvious. It would be small comfort to be told that one could still be vindicated via the appellate process after an expenditure of time and money in substantial amounts.

There is also, in my view, a defect in the government’s case arising from elements of both overbreadth and vagueness. Not, perhaps in the traditional sense of overbreadth of a statute. But in the sense of overbreadth in the indictment. Although the matter is not entirely free from doubt, it may be, as the court suggests in footnote 21 of its opinion that § 462(a) is not overbroad or vague. But when the conspiracy doctrine is superimposed on § 462(a), and especially in this case, grave problems are presented.

In Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), the Supreme Court struck down the Kentucky common law crime of libel on grounds of overbreadth due to vagueness. In so doing, the court referred, at 384 U.S. 200, n. 1, to Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), containing its long-standing caveat that criminal laws must not forbid “ * * * the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * 269 U.S. at 391, 46 S.Ct. at 127.

Conspiracy is an ancient doctrine. It is, however, not well-defined and experience teaches that even its traditional limitations tend to disappear. See Developments in the Law, Criminal Conspiracy, 72 Harv.L.Rev. 920, 933-34 (1959). In the present case the absence of definition is perhaps best illustrated by comparing the original indictment with the government’s subsequent shift in position in conceding that there were also perhaps several smaller conspiracies. And in addition to the government’s theories, the court takes yet a third view.9 This case, it seems to me, is a proper case for applying the Supreme Court’s mandate that an overly-broad prosecution cannot be saved on appeal by a limiting construction. See, Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969).10 *189The objection to an overly broad indictment is the same as that to an overly broad statute. In both cases the defendants are tried under one theory and their convictions can be upheld only under an entirely different theory.

To summarize, the hazards to free speech from the sequential open-endedness of the specific intent formulas and the lateral open-endedness of overbreadth and vagueness are not lightly to be tolerated. We should be slow to grant grudgingly today what may become license tomorrow. This leads to the question whether the danger to society justifies such circumscribing of First Amendment rights.

In addressing this question, both the court and I make reciprocal concessions. I concede that there is a need to maintain a peace time army, that a registrant may be convicted for violation of the draft laws, that one may be punished for encouraging such violation, that there exists a danger of widespread disaffection and resistance to the draft laws, and that the government is entitled to take all reasonable steps to protect itself before such disaffection becomes epidemic. The court concedes that speech need not be forbidden because it bears a causal relation to ultimate unlawful acts, and that the First Amendment rights of free speech and association are to prevail unless the government’s interest in preventing substantive crimes is substantial or unless there is a “less restrictive alternative” to deal with the problem, citing United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) ; Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); and Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). It concedes that this principle calls for a weighing.

Here we part company, for the court attends only to one side of the balance. Into that scale it puts four weights: (1) the nation’s interest in raising an army; (2) the right of government, in view of “the potency of conspiratorial conduct”, not to await the commission of substantive offenses; (3) the effectiveness as “incitement” of appellants’ call for immediate action on a large number of sympathetic young men; and (4) the fact that Congress has authorized the conspiracy sanction.

Congressional authorization of the conspiracy sanction cannot, in my view, weigh heavily on the scales once a genuine issue is raised as to the availability of a less restrictive alternative. When, however, such a threat appears substantial, courts must ask if there are other approaches which “more precisely and narrowly” serve the same governmental interest. See United States v. O’Brien, 391 U.S. 367, 381, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The fact that Congress has prescribed one approach presents the occasion for weighing; it cannot additionally predetermine the result, or the less restrictive alternative doctrine, as applied, for example, in Rohel and Aptheker would have no meaning.

Indeed, the question here is not really one of Congress’ authority. In § 462(a) Congress has provided for the use of the conspiracy sanction, and I do not quarrel with its application in a proper case. All that can be drawn from the statute is that Congress authorized the use of conspiracy where appropriate to protect the nation’s interest in raising an army. If it could be imagined that Congress intended to apply conspiracy to the facts of this case, my answer is that the First Amendment denies it the power to do so.11

*190The unexplored question is whether these interests can be as well served without resort to the conspiracy weapon. Here the “agreement” itself was an insufficient predicate. Something more was required. Neither Coffin nor Goodman, under the court’s rationale, became culpable until he made a statement or executed an act which constituted the substantive offense of aiding, abetting, or counselling draft evasion.

Had the appellants individually or collectively been indicted or tried for their separate offenses, the task would have been much simpler, as a reading of the transcript convincingly illustrates. The government would not have been delayed in time. It could have chosen whoever seemed most significant for psychological impact. Its proof against each would have been narrowly confined. It would not have faced the difficulties of special instructions on the occasion of the admission of evidence and on the occasion of the charge. I observe also that the penalty for conspiracy under § 462 (a) is not greater than that for the substantive offenses. Moreover, the government could have chosen a specific incident for the focus of a conspiracy — as, for an arguable example, the Arlington Church turn-in or the Department of Justice card collection ceremony.

Nowhere does the court indicate why either approach could not have served the societal interest equally well. If “less restrictive alternative” is to have any real meaning, courts should examine with specificity the utility of the rifle before resort is had to the shotgun.

In short, the court’s lack of emphasis on the “agreement” element results in its applying a form of substantive offense prosecution. The difference is — and it is a critical one — that a defendant may be punished not only for illegal acts but also on the basis of protected speech and legal acts. I conclude that prosecution for substantive offenses or for a narrow, discrete conspiracy, would fully serve the government’s interest — perhaps even more than the court’s sweeping conspiracy theory — without delivering such a serious blow to First Amendment freedoms.

To the extent that the court’s acquittal of the defendants Spock and Ferber is thought to illustrate the discriminating capacity of its rationale to separate the sheep from the goats, I respectfully take issue. In my view the acquittals are not justified by the court’s own guidelines.

The court acquits the defendant Spock, a man of great public visibility,12 who signed the “Call”, appeared at the press conference, and was present at Washington when the harvest of card turn-ins was presented to the Attorney General. For reasons which are unclear, the court, so restrained in permitting the jury to pass on other issues, chose to take the question of Spock’s guilt away from them.

On the basis of the testimony of both Spock and FBI agents who interviewed him, the jury could have found that Spock worked with several organizations supporting “draft resistance”, that he undertook his activities so that others would be encouraged to resist, and that his participation in the Whitehall demonstration was intended “to interfere with the administration of the Selective Service Act” and to frustrate the raising of troops.13 In addition the agent testified that Spock stated that had his actions at Whitehall “ * * * led to young men’s *191refusing to be drafted, that would have suited my purposes.”

Even assuming that Spock did not commit any illegal acts, there is no reason why the jury could not find his attendance at Washington on October 20 and his involvement at Whitehall to be legal acts clearly undertaken to advance the illegal aims of the conspiracy. Indeed, in view of the remarks attributed to Spock, the jury would clearly have been justified in so finding.

I am of course mindful of the lesson of Scales, swpra, and Noto, supra, that one may belong to a group having illegal aspects and not be found to be a conspirator. But in my view the court’s acquittal of Spock demonstrates the inapplicability of Scales to this case — for a realistic approach to Scales would result in the conviction of Spock and many others who signed the “Call” — that is, if the unambiguous statements and subsequent legal acts tests have any meaning. The court’s action underscores my conviction that in the First Amendment area finely honed distinctions do not serve as effective safeguards because they do not provide a basis for prediction of the legal consequences of future conduct.

The court’s acquittal of Ferber does not, as in the case of Spock, stem from application of the tests for specific intent. The court does not reach that point, having determined — on conventional conspiracy analysis — that there was insufficient evidence of Ferber’s having at any time joined the conspiracy. In my view this conclusion is not warranted by precedent or theory.

It is true, of. course, that Ferber did not sign the “Call”, but it is well settled that one may join a conspiracy subsequent to its original formation by adopting its goals and adhering to its purposes. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154 (1947). By Ferber’s own admission, the planners of the Arlington Street Church ceremony knew of the October 2 press conference, the contents of the “Call”, and the future plans for a Washington demonstration on October 20. Indeed, with respect to the latter, Ferber stated that he viewed the Washington affair as an opportunity to be taken advantage of. Most importantly, it was Ferber who furnished the link between Arlington and Washington by obtaining the defendant Coffin’s participation in the Arlington ceremony, and by subsequently delivering the cards turned in at Arlington in Washington on October 20. In light of these facts, it is, in my opinion, straining to say that the jury could not have found Ferber to be a co-conspirator.14 Indeed, this is particularly true in light of the court’s approving citation of Interstate Circuit, Inc. v. United States, supra, where the Supreme Court, in discussing agreement, said: “It was enough that, knowing that concerted action was contemplated and invited, [the defendants] gave their adherance to the scheme and participated in it.” 306 U.S. at 226, 59 S.Ct. at 474.

In my view the court’s acquittal of Spock and Ferber is the product of its own generosity rather than the inevitable result of its rationale. Were this only a disagreement over the application of legal principles, perhaps there would not be so much cause for concern. But this is a landmark case and no one, I take it, supposes that this will be the last attempt by the government to use the conspiracy weapon. The government has cast a wide net and caught only two fish. My objection is not that more were not caught but that the government can try again on another day in another court *192and the court’s rationale provides no meaningful basis for predicting who will find themselves within the net. Finally, there is the greater danger that the casting of the net has scared away many whom the government had no right to catch.

APPENDIX

A Call to Resist Illegitimate Authority

To the young men of America, to the whole of the American people, and to all men of good will everywhere:

1. An ever growing number of young American men are finding that the American war in Vietnam so outrages their deepest moral and religious sense that they cannot contribute to it in any way. We share their moral outrage.
2. We further believe that the war is unconstitutional and illegal. Congress has not declared a war as required by the Constitution. Moreover, under the Constitution, treaties signed by the President and ratified by the Senate have the same force as the Constitution itself. The Charter of the United Nations is such a treaty. The Charter specifically obligates the United States to refrain from force or the threat of force in international relations. It requires member states to exhaust every peaceful means of settling disputes and to submit disputes which cannot be settled peacefully to the Security Council. The United States has systematically violated all of these Charter provisions for thirteen years.
3. Moreover, this war violates international agreements, treaties and principles of law which the United States Government has solemnly endorsed. The combat role of the United States troops in Vietnam violates the Geneva Accords of 1954 which our government pledged to support but has since subverted. The destruction of rice, crops and livestock; the burning and bulldozing of entire villages consisting exclusively of civilian structures; the interning of civilian non-combatants in concentration camps; the summary executions of civilians in captured villages who could not produce satisfactory evidence of their loyalties or did not wish to be removed to concentration camps; the slaughter of peasants who dared to stand up in their fields and shake their fists at American helicopters; — these are all actions of the kind which the United States and the other victorious powers of World War II decláred to be crimes against humanity for which individuals were to be held personally responsible even when acting under the orders of their governments and for which Germans were sentenced at Nuremberg to long prison terms and death. The prohibition of such acts as war crimes was incorporated in treaty law by the Geneva Conventions of 1949, ratified by the United States. These are commitments to other countries and to Mankind, and they would claim our allegiance even if Congress should declare war.
4. We also believe it is an unconstitutional denial of religious liberty and equal protection of the laws to withhold draft exemption from men whose religious or profound philosophical beliefs are opposed to what in the Western religious tradition have been long known as unjust wars.
5. Therefore, we believe on all these grounds that every free man has a legal right and a moral duty to exert every effort to end this war, to avoid collusion with it, and to encourage others to do the same. Young men in the armed forces or threatened with the draft face the most excruciating choices. For them various forms of resistance risk separation from their families and their country, destruction of their careers, loss of their freedom and loss of their lives. Each must choose the course of resistance dictated by his conscience and circumstances. Among those already in the armed *193forces some are refusing to obey specific illegal and immoral orders, some are attempting to educate their fellow servicemen on the murderous and barbarous nature of the war, some are absenting themselves without official leave. Among those not in the armed forces some are applying for status as conscientious objectors to American aggression in Vietnam, some are refusing to be inducted. Among both groups some are resisting openly and paying a heavy penalty, some are organizing more resistance within the United States and some have sought sanctuary in other countries.
6. We believe that each of these forms of resistance against illegitimate authority is courageous and justified. Many of us believe that open resistance to the war and the draft is the course of action most likely to strengthen the moral resolve with which all of us can oppose the war and most likely to bring an end to the war.
7. We will continue to lend our support to those who undertake resistance to this war. We will raise funds to organize draft resistance unions, to supply legal defense and bail, to support families and otherwise aid resistance to the war in whatever ways may seem appropriate.
8. We firmly believe that our statement is the sort of speech that under the First Amendment must be free, and that the actions we will undertake are as legal as is the war resistance of the young men themselves. But we recognize that the courts may find otherwise, and that if so we might all be liable to prosecution and severe punishment. In any case, we feel that we cannot shrink from fulfilling our responsibilities to the youth whom many of us teach, to the country whose freedom we cherish, and to the ancient traditions of religion and philosophy which we strive to preserve in this generation.
9. We call upon all men of good will to join us in this confrontation with immoral authority. Especially we call upon the universities to fulfill their mission of enlightenment and religious organizations to honor their heritage of brotherhood. Now is the time to resist.
For further information contact
RESIST, 166-5th Ave., NYC
10010/675-2270
* Printed by volunteer labor

Resist

Room 210, 166 Fifth Avenue, New York

August 1967

Dear Friend:

The time has come to resist the war in Vietnam.

The enclosed statement, “A Call to Resist Illegitimate Authority,” constitutes a first step toward the more vigorous response to the war which the time requires of us. Those who have signed, including ourselves, have pledged themselves to extend material and moral support to young men who are directly resisting the war. Many of us are further committed to joining those young men in acts of civil disobedience.

Over 200 persons have already signed the statement. The statement and the names of the signers will be made public at the end of September through a press conference held by a committee of prominent signers and through ads in The New York Review of Books and The New Republic.

We ask you to join us by signing “A Call to Resist Illegitimate Authority.” More than that, we ask you to commit yourself to the fullest possible extent to the tasks of resisting the war and bringing it to a halt.

■ There is an urgent need for funds to bring assistance to draft resisters and to those in the armed forces who refuse to fight in Vietnam. Will you help as generously as you can?

*194There is an equally urgent need to organize local groups of academics, clergymen, professionals and other adults for the purpose of directly supporting those who resist the draft and the armed forces. Are you willing to organize or join such a group in your community?

We can all do something to end this war. And we must.

(s) Noam Chomsky (s) Dwight Macdonald

Noam Chomsky Dwight Macdonald

(s) William S. Coffin, Jr. (s) Benjamin Spock

William S. Coffin, Jr. Benjamin Spock

clip and send to: RESIST /Em. 510/166 5th Ave. /NYC 10010

......I wish to sign “A Call to Resist Illegitimate Authority” and am willing to have my endorsement made public.

...... I enclose a contribution of $..........to support the work of RESIST. (Please make checks payable to RESIST.)

......I am interested in organizing or joining a group in my community to support young men directly resisting the war.

Sincerely,

name .........................................................

profession and title.............................................

address .......................................................

city .......................... state ..........................

phone .................... (office) .................... (home)

. The court, in its footnote 9, criticizes my reference to discipline as a traditional component of conspiracy, citing Interstate Circuit, Inc. v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610 (1939). In that case cohesiveness was effectively assured by the presence of substantial economic factors which impelled near unanimity of action. To derive sanction from what was in effect a monopoly power play for the proposition that cohesiveness and discipline are unimportant in conspiracy law, particularly in the public expression area, seems to me an unjustified leap in the wrong direction.

. Nevertheless I confess to sharing the bias expressed by Mr. Justice Harlan, dissenting in Grunewald v. United States, 353 U.S. 391, 402, 77 S.Ct. 963, 972,1 L.Ed.2d 931 (1957), that: “ * * * [E]very conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world.”

This statement was the manifestation of Justice Harlan’s concern with the limitless capacity of conspiracy theory to expand itself. Specifically, the remark was in response to an argument that conspiracy could be inferred from the mere existence of concealment of activities.

In my view the statement also reflects an intuitive grasp of the limits of conspiracy. Just as there is reason to fear the expansion of conspiracy based on the mere existence of secrecy, there is equal justification — indeed, more — in fearing expansion of conspiracy into the realm of public discussion.

. See, e. g., Dennis v. United States, 341 U.S. 494, 71 S.Ct. 587, 95 L.Ed. 1137 (1951) ; Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542 (1920) ; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

The “public” conspiracy cases cited by the court would appear to fall within this category in that in each ease the efforts of a cohesive group were aimed at a single illegal goal — the frustration of conscription. See, e. g., Wells v. United States, 257 F. 605 (9th Cir., 1919) (No Conscription League) ; Haywood v. United States, 268 F. 795 (7th Cir.), cert. denied, 256 U.S. 689, 41 S.Ct. 449, 65 L.Ed. 1172 (1920) (Industrial Workers of the World) ; Anderson v. United States, 273 E. 20 (8th Cir.), cert. denied, 257 U.S. 647, 42 S.Ct. 56, 66 L.Ed. 415 (1921) (Industrial Workers of the World) ; United States v. Gordon, 138 F.2d 174 (7th Cir.), cert. denied, 320 U.S. 798, 64 S.Ct. 266, 88 L.Ed. 481 (1943) (Peace Movement of Ethiopia).

Even within the limits of a cohesive group and a single illegal purpose I question whether the above cases would be sound authority today — not because age *186carries a presumption of invalidity, but because in none of the cases did the court demonstrate an appreciation of First Amendment issues. Indeed, in Gordon, supra, and Wells, supra, the First Amendment was discussed only in passing, and in Haywood, supra, and Anderson, supra, not at all. See also Fraina v. United States, 255 F. 28 (2d Cir. 1918), discussed infra.

. See, e. g., Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) ; Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961).

. While a half century’s age is not necessarily fatal, Fraina would not appear to have outlived its time. Two men addressed a meeting each detailing why he was a conscientious objector. A pamphlet describing the philosophy and proper response of the conscientious objector was distributed. The court, blessedly oblivious of contemporary meetings where a goodly part of the audience come to heckle, was able to say that if a meeting is called to hear certain speakers on a certain subject, “[I]t is impossible not to infer a combination in thought among the platform occupiers and their helpers.” 255 F. at 34. The court drew sustenance from the principle that the standards by which to judge whether speech should be proscribed are “the common-law rules in force when the constitutional guaranties were established.” In my view the court’s comments on both conspiracy law and the First Amendment demonstrate that the opinion is only of antiquarian interest.

. This analysis is, I believe, consistent with the historic reluctance, recognized by the court, to expand conspiracy law. See, e. g., Von Moltke v. Gillies, 332 U.S. 708, 728, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (concurring opinion by Justice Frankfurter) ; United States v. Falcone, 109 F.2d 579 (2d Cir. 1940) ; see generally O’Brien, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592 (1948) — and with the evolving insistence on First Amendment rights in many areas of national life. See, e. g., Street v. New York, 394 U.S. 572, 89 S.Ct. 1354, 22 L.Ed.2d 572 (April 21, 1969) ; Stanley v. Georgia, 393 U.S. 819, 89 S.Ct. 124, 21 L.Ed.2d 90 (1969); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) ; Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) ; Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (February 24, 1969); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) ; New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

. Disconcertingly, however, the court acquits the defendant Ferber primarily because he did not sign the “Call”.

. I assume that if X were to say unambiguously, before or after signing the “Call”, “What I would really like to see is every local draft board deluged with turn-ins,” he becomes a conspirator on the happening of the later event although each statement is, by itself, protected. Moreover, the period of time between the two statements is apparently subject to no statute of limitations.

. Counsel for defendants were faced alternatively, and at different times, with theories that the Call was the agreement and ipso facto proof of the conspiracy, that specific events were themselves the basis for smaller conspiracies, and finally that evidence of specific intent as demonstrated by their subsequent speech and legal acts was to be the ultimate ground for determination of their guilt.

. Indeed, this principle is particularly applicable here, where, as the court concedes, the jury may not have been ade*189quately instructed as to specific intent, and may have been erroneously permitted to determine a defendant’s culpability by reference to the remarks and acts of other alleged co-conspirators some of whom were not defendants.

. For the analogous situation where the application of otherwise valid regulations was held invalid as applied, see Tick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ; Wolff v. Selective Service Local Board No. 16, 372 F.2d *190817 (2d Cir. 1967); National Student Ass’n v. Hershey, 412 F.2d 1103 (D.C. Cir., June 6, 1969).

. Spock was well aware of his ability to generate 'publicity, and lie admitted that this was the reason for his attendance at so many press conferences and public forums.

. Spock denied describing his participation in these terms but the jury was not obliged to believe him.

. The court’s acquittal of Spock and Ferber poses a hard question in terms of the realities of such a trial as that below. While trial judges must often carry nice legal distinctions in their minds while absorbing great quantities of evidence, it is difficult for me to imagine that, at the close of the government’s case, the district judge would have granted or could have been expected to grant two motions for acquittal and deny others.