How Today’s Laws Were Shaped by the Vietnam War

The Vietnam War changed the United States dramatically. We can see it in today’s politically divided society, our current lack of faith in the government, our changing immigration patterns and, most obviously, in the Vietnam Memorial in Washington, D.C.

More surprisingly, perhaps, we can experience it every time we step into a courtroom. Court cases linked to the Vietnam War brought about major changes in U.S. law that still impact us today.

What makes a threat real?

The Vietnam War helped create a new category of unprotected speech: The “true threat.” In 1966, Robert Watts said to a crowd in Washington that “if they ever make me carry a rifle, the first man I want to get in my sights is LBJ.” Watts was promptly arrested for threatening the president. The U.S. Supreme Court overturned his conviction, saying that Watts’ speech was “crude political hyperbole,” not a “true threat.”

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Construction workers and police clash during pro-Vietnam War demonstration in New York City, 1970. Photo courtesy of Benedict J. Fernandez.

Unfortunately, Watts v. United States did not explain what a true threat is; just what it isn’t. With threats and harassment everywhere on the internet and in “real life,” true threat doctrine seems primed for clarification in the near future. For now, we have only a vague idea of when threatening words leave the protective umbrella of the First Amendment.

What makes speech ‘speech?’

What happens when “speech” isn’t really speech? In 1966, four protesters burned their draft cards to protest the Vietnam War, breaking a 1965 federal law. They appealed to the Supreme Court, which, in a major victory for “symbolic speech,” declared that the First Amendment protected non-verbal expression, too.

The Supreme Court’s decision in United States v. O’Brien was not a victory for the protesters, however. State legislatures could make laws that limit expression as long as they do not target any particular belief. The Court decided that the law did not target Vietnam protesters, and as a result, the protesters’ convictions were upheld.

Where do student rights begin and end?

If you worked on your high school paper, you’ve probably heard of this one. Building on O’Brien, another Vietnam case guaranteed basic speech rights for public school students. Previously, U.S. schools operated on the principle in loco parentis, meaning “in the place of a parent.” Schools were largely able to make any decision they could justify as being in the best interests of the students.

Much of that changed with Tinker v. Des Moines. In 1965, several students wore black armbands to school to protest the Vietnam War. The students were suspended and their families filed suit.

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College students gather in support of President Richard Nixon in 1969. Photo courtesy of AP/WF.

The Supreme Court’s ruling was a mixed bag for students. On one hand, they declared that students do not give up their First Amendment rights “at the schoolhouse gate.” On the other, the school’s constitutional mistake was not limiting students’ rights. It was that they did so only to avoid controversy. Schools can still limit any student speech that interferes with learning.

Still, if this sounds preferable to in loco parentis, you can thank the Vietnam War, the U.S. Supreme Court and a handful of kids.

What makes war ‘war?’

The Supreme Court’s most important decision during the Vietnam War might have been one they chose not to make. Justice William O. Douglas was staunchly anti-war and willing to do something about it from the bench. Douglas wanted to rule the Vietnam War illegal because it was not accompanied by a congressional declaration of war.

Douglas was not the only anti-war member of the Supreme Court. However, several of the Court’s other liberals were strongly anti-Communist. Douglas could never get three additional votes to hear the case, much less four to declare the Vietnam War unconstitutional.

The United States has been fighting undeclared wars since it became a country. Had Douglas’ efforts been successful, the United States would have lost one of its most potent foreign policy tools and every military conflict from Vietnam to the present day may not have happened. There’s too much speculation involved in counterfactual history to spend time on the possibilities here, but it is generally much more difficult to get a war declaration than a financial commitment to deploy troops abroad.

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Marines on patrol near the DMZ in 1966. Photo courtesy of Larry Burrows/Getty Images

This is not a complete list of Vietnam cases, or even important Vietnam cases. The Court’s opinion in Cohen v. California, where a man was arrested for wearing a jacket that said “Screw the Draft,” gave us the expression “one person’s vulgarity is another’s lyric.” New York Times v. United States, the “Pentagon Papers Case,” allowed the media to share classified information that would not cause “direct, immediate, and irreparable damage,” a decision that seems extremely relevant in the age of WikiLeaks.

The Vietnam War impacted the United States far beyond the battlefields and the protests. Watch “The Vietnam War,” a film by Ken Burns and Lynn Novick, premiering on Sept. 17 to learn more. Check your local PBS station’s schedule for broadcast dates and times, or stream online at PBS.org.

Also, the jacket didn’t exactly say “ ‘Screw’ the Draft,” but maybe you already figured that out.

Jacob Hillesheim

Jacob Hillesheim teaches high school American history and government in Minnesota. He probably would have gone pro if it wasn’t for that bum shoulder. Average DQ Blizzards consumed per month: 2.73.

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