The Draft May Not Be Used To Silence Dissent

To protest U.S. policy in Viet Nam, 16 draft-deferred University of Michigan students took part in a sit-in at the Ann Arbor draft board in 1965. Reaction came swiftly. With the blessing of U.S. Draft Director Lewis B. Hershey, all 16 students were reclassified 1-A. That seemed to be that. Draft boards have considerable discretion, especially over student deferments. A draft registrant has no right to counsel when he appears before his local board; he can appeal his classification to higher boards, but not to federal courts.

Once inducted, he can seek habeas corpus, or he can refuse to report and try for acquittal on the resulting criminal charges. In short, the draft is so hard to challenge that dissenters may prefer to keep quiet rather than risk reprisal. For precisely that reason, the U.S. Court of Appeals for the Second Circuit (New York, Vermont, Connecticut) agreed to rule last week in a case involving two of the Michigan students, Richard Shortt, 22, and Peter Wolff, 29, both from New York City.

First Amendment. After their sit-in, according to their home draft boards, Shortt and Wolff could be reclassified 1-A because by impeding the work of the Ann Arbor board, they had committed a federal crime ($10,000 fine, five years' imprisonment). In effect, without a court trial or even an indictment, the New York boards "convicted" the students and then meted out the "sentences" of mandatory induction. Since only courts can convict for crimes, Shortt and Wolff asked U.S. District Judge Edward C. McLean to void the draft orders for lack of due process and patent violation of their First Amendment rights of free speech, assembly and petition. McLean refused, ruling that the students had neither "exhausted their administrative remedies" (appeals to higher boards) nor proved any "irreparable injury" to themselves. Until they were actually drafted, he said, they had no "justifiable controversy" that a federal court could or should resolve.

Speaking for the appellate court last week, Circuit Judge Harold R. Medina flatly reversed District Judge McLean. To be sure, said Medina, federal courts are "extremely reluctant" to interfere with draft boards, even when they exceed their powers as clearly as they did in the case of Shortt and Wolff. But free speech must take precedence over nonintervention, said Medina. "Here, it is the free expression of views on issues of critical current national importance that is jeopardized. On such topics, perhaps more than any other, it is imperative that the public debate be full and that each segment of our society be permitted freely to express its views."

Nowhere Appeals. In justifying his rare intervention into draft-board affairs, Medina pointed out that no draft law specifies what kind of protest may cause reclassification. Having no lawful standard of conduct, he said, demonstrators face an unconstitutional threat--shut up or risk being drafted. Moreover, added Medina, "no purpose would be served by relegating appellants to their administrative remedies." Unlike Shortt and Wolff, six other Michigan demonstrators appealed to higher draft boards--and got nowhere.*

Medina's opinion virtually commands Judge McLean to enjoin the reclassification of Demonstrators Shortt and Wolff, provided they can meet the federal-law requirement and prove injury of more than $10,000. The effect is to bar the draft as a weapon against dissent. It is, of course, still a crime to evade the draft, Medina explained. But the First Amendment forbids draft boards to "punish these students by reclassifying them 1-A because they protested as they did over the Government's involvement in Viet Nam."

* They are now suing in a District of Columbia federal court, which is not bound by the Second Circuit decision but will have to consider it. None of the Michigan draft-board demonstrators (or apparently any others) have yet been drafted.

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