On this day, January 5, in the year 1968, a federal grand jury indicted child psychologist Dr. Benjamin Spock and four others for conspiring to aid draft dodgers.  Spock was tried and convicted, but his conviction was later overturned on appeal.

One of the most prominent figures of the 1960s was Dr. Benjamin Spock.  Dr. Spock is most widely known for his best-selling book “Baby and Child Care”.   Arguably one of the most influential pediatricians in American history, Dr. Spock became a major social activist who stood beside young people in antiwar demonstrations and marched beside Martin Luther King, Jr. in the civil rights movement.

The Selective Service Act of 1948 made it a criminal offense for any person to knowingly counsel, aid, or abet someone in refusing or evading registration in the armed forces.  As is well known, in the 1960's and early 1970's the war in Vietnam and the drafting of young men to engage in war engendered significant animosity within the American public.   In August 1967 a number of academic and professional persons discussed the need for a vigorous opposition to the government’s policies related to the war in Vietnam, particularly the draft.  From their mutual efforts came a document entitled "A Call to Resist Illegitimate Authority," which became known as “The Call”.   The Call was signed by Dr. Benjamin Spock, Reverend William Coffin, Jr. (chaplain of Yale University), Harvard University graduate student Michael Ferber, author Marcus Raskin, author Mitchell Goodman and eventually hundreds of other people.  

Spock, Coffin, Goodman and others, on October 2, 1967, spoke at a press conference in New York City to launch the Call.  It was there announced by Goodman that further activities were planned, including a nationwide collection of draft cards and a ceremonial surrender of the cards collected to the Attorney General.  On October 16, 1967 a draft card burning took place at the Arlington Street Church in Boston, arranged by Michael Ferber, and participated in by Rev. Coffin.   Four days afterwards Spock, Coffin, Ferber and Goodman attended a demonstration in Washington DC, in an effort to present the fruits of the draft card collection to the Attorney General.

On January 5, 1968, Spock, Coffin, Ferber, Goodman and Raskin were indicted by the Department of Justice for conspiring to counsel, aid, and abet resistance to the draft.  The indictment charged that the 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 classification [and conspired to] ... unlawfully, willfully and knowingly hinder and interfere, by any means, with the administration of the Universal Military Training and Service Act."   The five alleged criminal defendants would soon become known as the “Boston 5".

When questioned about his arrest and prosecution, Spock was quoted as saying, that he was not afraid of going to jail and would fight it all the way to the Supreme Court.  He referred to the "higher law" brought out at the time of the Nuremberg postwar trials of Nazi leaders.  That law, he said, made it morally necessary to disobey when "your government is up to crimes against humanity."  "The Government is not going to quit easily and neither are we," Spock said.

In the courtroom, however, the criminal defense attorneys would find a judge that was not willing to allow the lawfulness of the Vietnam war to become an issue.  The judge refused to find that the Vietnam war had been unconstitutionally initiated as the defendant’s criminal defense lawyers contended.  The judge also ruled that the Nuremberg defense was "not justiciable" and good not be mentioned at trial by the defendants or the defense attorneys.  Finally the judge would reject all arguments that the defendants had a constitutional right under the first amendment to express their views about the draft and encourage others to resist their involuntary servitude as soldiers in Vietnam.  The case proceeded to a jury trial.

At trial the judge would severely limit all evidence presented by the defendants.   The jury would be instructed that they must follow the law, even if they did not agree with it.   Over the vehement objections of the defendant’s criminal defense attorneys, the judge on his own, without being asked to by the prosecution, would require the jury to answers ten very specific questions that lumped all five defendants together.  The procedure of asking jurors specific questions was very unusual for a criminal case, though it is often used in civil cases.  

After deliberating for almost eight hours Spock, Coffin, Ferber and Goodman would be found guilty.  Only Raskin would be found not guilty by the jury.  Later, Spock and the other convicted defendants would be sentenced to two years in prison, though they would be allowed to remain free on bond while criminal defense attorneys appealed the verdicts.

On appeal, the Court found as to Spock and Ferber that there was insufficient evidence of specific intent to commit the crime alleged and dismissed the charges against them.  The appellate Court found that the trial judge should have granted the defense attorneys’ request for a judgement of acquittal or directed verdict as to Spock and Ferber.  As to the remaining defendants, the Court would found that the specific questions to the jury were prejudicial and required reversal of the convictions entered against Goodman and Coffin. 

Goodman and Coffin were granted new trials.  Not surprisingly, the prosecution was not renewed against Goodman and Coffin.  The first prosecution had come close to creating antiwar martyrs out of the accused defendants, and any notion that convictions would suppress opposition to the war had long been dispelled.

Sources and more information:

United States v. Benjamin Spock, et al., 416 F.2d 165 (United States Court of Appeals, First Circuit 1969)

It Did Happen Here, by Bud and Ruth Schultz (University of California Press, 1989)

Spock and Coffin Indicted For Activity Against Draft, by Fred P. Graham, New York Times, January 6, 1968

Spock Hopes 500,000 Will Refuse to Be Drafted, by Edward C. Burks, New York Times, January 6, 1968

40 Years After, United States v. Dr. Benjamin Spock, by Rick Campbell

Dr. Spock Guilty With 3 Other Men in Antidraft Plot, New York Times, June 15, 1968

Mitchell Goodman, Antiwar Protest Leader, Dies at 73, New York Times, February 6, 1997