Remarks delivered by Associate Justice Ming W. Chin, CA Supreme Court
This evening, I am going to share with you some of my experiences as a Captain in the U.S. Army. I am then going to discuss the importance of protecting freedom of speech, particularly during times of war — when it is so tempting to do just the opposite. I will close with some observations about the very poor treatment our veterans have received.
Coincidentally, November 11th is Veterans Day (1). On that day, 94 years ago, World War I ended. It was supposed to be “the war to end all wars” (2). Each year since 1919, at the 11th hour of the 11th day of the 11th month, our nation pauses to pay tribute to its veterans and to honor their service and their sacrifice (3). Because of their commitment to duty, honor, and country, we live today in the most prosperous and the freest country in the history of the world. The freedom we enjoy today was made possible by their sacrifice and their courage. Members of the legal profession have a unique and special responsibility for defending the Constitution, particularly during times of war. We also have a similar responsibility to ensure those who served in these wars are cared for and protected.
In 1967, when I graduated from law school, that service and sacrifice were brought home to me in graphic terms. I was eager to begin my legal career. But I knew the practice of law would have to wait. There was a war being waged halfway around the world, and the U.S. Army and President Johnson insisted that I show up. Frankly, it never occurred to me to say no. Instead of donning the well-tailored suit of a trial lawyer, I found myself wearing jungle fatigues as an Army captain in Quang Tri, Vietnam, seven miles south of the DMZ. My brother, Tom, was in the army at the same time. Interestingly, there is a rule that only one sibling will be sent to a given war zone — I’ve never let Tom forget it.
I’ll also never forget landing at the air strip in Quang Tri. I was in a C-130 cargo plane with a tank in the center with boots lined up on both sides. As the plane descended, the captain announced, “The air strip is under attack — when we land, off-load smartly to the rear of the plane — this plane will take off immediately after you disembark.” I said to myself, “Thanks so much for the ride.” That was the beginning of a year-long experience that I seldom speak of but will never forget. I learned from firsthand experience what duty, honor, country, and leadership are all about.
I was assigned to the 1st Brigade of the 5th Mechanized Infantry Division. We were deployed as a unit from Fort Carson, Colorado, to Quang Tri, Vietnam to replace the 3rd Marine Division. I gained newfound respect for military precision and logistics. We moved 5,000 men and all our equipment, including more than 2,000 vehicles, from Colorado to Vietnam, and were fully combat-operational in 5 days. I lived in a tent for 6 months. I have not been camping since.
In the corner of my garage at home is an old Army footlocker filled with memories. In 1969, when I returned home from Vietnam, I sent that footlocker ahead with all of my worldly possessions. I opened it the other day, and memories of the war flooded back. I remembered the family I left behind. I remembered that the burden of my Army service was much harder on my parents than it was on me.
My parents were Chinese immigrant farmers. My father immigrated in 1913. He came without family, without friends, without language. And yet, in this wonderful land of hope, freedom, and opportunity, he was able to carve out a remarkable life for his family. I am the youngest of eight children. My brothers and sisters names are Mary, George, Joe, Betty, Jack, Jeanne and Tom. I have no idea where Ming came from. My father was tough, hardworking, and pragmatic. He lived through extreme racial prejudice as well as the Great Depression. He was not an emotional man; growing up, I never saw him cry.
Before my deployment to Vietnam, I made one final trip home to say goodbye. On the last day, my parents took me to SFO. Before boarding the plane, I gave Mom a hug. I reached out to shake Dad’s hand. He brushed it aside and gave me a long warm embrace. When he pulled away, I saw tears streaming down his face.
Shortly after I came home from the war, my father suffered a paralyzing stroke. He never spoke again. He never walked again.
As I continued to sift through mementos in that footlocker, I also remembered the brave men with whom I had the privilege and honor of serving — outstanding young men from every part of the country, of every race, color, and creed, who didn’t care about the color of your skin, but just wanted to know if you could be counted on when the going got tough. Life-long friendships were forged out of sometimes terrifying and harsh circumstances. Unfortunately, many of my friends did not return home.
Although the Vietnam War’s objectives were unclear, one result is painfully clear — thousands of brave men and women died. Many more were wounded or traumatized by the experience of war.
The day each of us returned home from Vietnam is a day etched in our memories. I can still hear the exhilarating roar of very happy soldiers as our plane touched down on American soil at the Travis Air Force Base in Fairfield. Friends and family welcomed us home with open arms and tears of joy. Across the country, there were countless random acts of kindness – many civilians expressed their appreciation for our sacrifices. For example, some people forfeited their own plane tickets so soldiers could get seats on full flights; others turned their cars around to offer rides to soldiers who were traveling in the opposite direction; and some bought soldiers dinner as a token of their gratitude.
Yet the homecoming for too many vets needlessly added to the traumatic experience of the war. When we left for Vietnam, all of us wore our uniforms with pride. However, when we returned as veterans, our uniform too often became a target for demonstrators who opposed the war. Many protestors were unable to see that the veterans were men who had endured terror and tragedy beyond words in the service of our country, and that personal attacks on veterans only caused them additional injury without advancing the anti-war cause one iota.
The Vietnam War lasted over eight years — and yet it ended abruptly. There was no offi cial “welcome home.” There were no parades. There wasn’t even a simple “Thank you for serving.”
THE VIETNAM MEMORIAL — HEALING THE SCARS
The Vietnam Memorial in the nation’s capital honors veterans for their service to the country in an unpopular war (4). Initially, the Memorial itself was no less controversial than the war that spawned it. Before the Wall was built, its design had many detractors, some of whom called it the “black gash of shame.” However, once the Wall was completed, it seemed to give voice to the deep and complex feelings caused by the war, and to offer our nation the opportunity to heal.
In 1982, seven years after the war ended, 15,000 veterans marched in a long overdue welcome home parade (5). A few days later, 150,000 veterans and their families gathered in Washington, D.C., to dedicate the Vietnam Memorial (6). For many, the Wall allowed them to say goodbye to those they had left behind. They were able to touch the names of those who were lost, and to remember their sacrifices. When the Memorial was erected, a wrong had at long last been righted — and those who fought and died were no longer forgotten.
The Wall was, and is, different from most memorials. When you walk down into it, darkness envelops you. In the midst of that darkness, are the names of those men and women who died. Although their names are forever memorialized in darkness, as you leave you walk up into the light. It is a place where the living can confront the darkness of death and embrace the light of life. It is a place for personal reflection. It engages your senses and your emotions and does not let you leave unchanged. It has become a catalyst for healing.
My visits to the Vietnam Memorial are always emotional. For me, the real poignancy of the Memorial is that as I reach out to touch the names of good friend — I remember their courage, their bravery, their commitment to country — then I see my face reflected in the black granite, and I realize how very fortunate I am to be here.
If my name were on that wall, I never would have met my wonderful and dear wife, Carol. This December, we will have been married 42 years. We would not have had Jennifer and Jason, our two talented and terrific children. I am very proud that both are lawyers and have chosen public service careers. Jennifer is in the General Counsel’s office of the University of California, specializing in employment law. Jason is in the District Attorney’s offi ce of Alameda County, where he heads up the DNA/Cold Hit section. I suppose it’s just a coincidence that I am the author of two Rutter Group Practice guides — one on Employment Law and the other on Forensic DNA. Jennifer and Jason both have charming and loving spouses, Michael and Elizabeth. They have given us three wonderful grandchildren, McKenna, Sydney, and Nolan Ming.
And, finally, if my name were on the wall, I would not have had the honor and the privilege of serving as a judge in California for the last 25 years. There is no doubt about it — I am living the American Dream.
Because I have been so blessed, I feel a special responsibility to the 58,000 men and women who did not return home to contribute more to our community. Let us never forget them and the ultimate price they paid to protect our liberty — let us remember the unfulfi lled promise in their lives that now will never come to pass —and let us create communities and a nation that is worthy of their sacrifice. Let us keep the American Dream alive for all of us.
CONSTITUTION v. DECLARATION OF INDEPENDENCE
This American dream of ours was born of the marriage of two important historical documents––the Declaration of Independence and the Constitution. The first was written in 1776, while we were at war with England. The second was written in 1787, after we had started building the institutions of government that would make this new idea of democracy work.
The language of these two documents is very different. The Declaration of Independence gives us the sobering rhetoric of war and the passion to pursue excellence and perfection.
The Constitution has less passion, less certainty. There is no reference to the creator. The Constitution gives us the dry discourse of governance––the structure, the road map for a working democracy. The Declaration is the promise; the Constitution the fulfillment. The Declaration gives voice to high ideals; the Constitution puts those ideals into practice. Both have as their purpose the protection of liberty. Our allegiance to their principles is the very foundation of our freedom. It enriches all of us.
THE FIRST VETERANS’ DAY (ARMISTICE DAY)
In 1919, when President Woodrow Wilson first set aside November 11 to honor our veterans, he said we should look back with pride at “the heroism of those who died in the country’s service and with gratitude for [their] victory,” “because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations” (7).
The selfless sacrifice of our veterans makes our freedom and liberty possible. As members of the legal profession, we have a unique and special responsibility for defending freedom, especially during times of war.
To illustrate the point, let us take a trip in a time capsule. It is October of 1919. The United States Supreme Court is hearing Abrams v. United States.8 The five defendants in the case are Russian immigrants arrested for throwing leaflets from the rooftop of a building in New York City, leaflets that criticized U.S. involvement in World War I and advocated a strike in munitions production (9). The defendants have already been convicted and sentenced to 20 years in prison under the Espionage Act, which makes it illegal to use any false “disloyal, profane, scurrilous, or abusive language” against the government (10).
Justice Oliver Wendell Holmes listens as the defendants’ attorney argues that the convictions should be overturned because free speech must be absolute and any discussion of public policy must be protected, regardless of its potential danger (11). The government argues that any criticism of government may be criminalized during a time of war, even if it is unlikely that the views expressed will impede the war effort (12).
A majority of the Court votes to affirm the convictions, as they have in previous cases involving the suppression of seditious speech (13). Justice Holmes disagrees with both sides (14). The First Amendment’s protection of free speech is not absolute (15). The government cannot suppress speech it thinks is dangerous unless the threat such speech poses is imminent (16). Holmes believes that because the defendants’ protest was unlikely to achieve the ends it sought, the government’s criminalization of their speech runs afoul of the First Amendment, even during a time of war (17).
This represents a change in his views (18). Just a few months earlier, Holmes had written for a unanimous court, upholding the conviction of two socialists for attempting to distribute thousands of flyers to American servicemen recently drafted to fight in World War I (19). The flyers criticized the war effort and urged draftees to resist the draft.20 In that decision, Holmes wrote that criticizing the war effort was like “falsely shouting fire in a theatre and causing a panic” (21). “When a nation is at war,” he wrote, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight”(22).
His colleagues are so bewildered by his changed view in Abrams that on November 7, 1919, three travel to his home hoping to persuade him to withdraw his dissent and sign on with the majority (23). The country is in turmoil and the justices plead that the court should speak with one voice (24).
The war has ended, but race riots and labor strikes have spread across the country (25). Anarchists have mailed boobytrapped brown paper packages to politicians and judges, including Justice Holmes (26). Fortunately, this package was intercepted before it could be delivered (27).
In times of war, it is all too tempting to take liberty for granted. Justice Holmes was no stranger to war. He was a 20-year-old senior at Harvard when he enlisted in the Union Army during the Civil War (28). He was wounded three times in that war, suffering near fatal bullet wounds to his neck and chest (29). Earlier, as the editor of the Harvard Magazine, he urged his readers not to avoid “books of an agitating tendency” (30). He did not fear exposing himself to views different from his own, because he felt that only by such exposure could a vigorous, resilient mind be shaped. In response, Harvard considered shutting down the magazine and Harvard’s president wrote a letter to Holmes’s father about the articles he was publishing (31). Holmes did not give in.
As a young captain, he was on the front line of the Battle of Fort Stevens. President Lincoln made a visit (32). The President stood up, not realizing that he was making himself a target. Holmes yelled “Get down, you damn fool!” (33). Before the President left the fort, he sought Holmes out. He said, “I’m glad to see you know how to talk to a civilian” (34).
In the years after the war, at a Memorial Day address, Justice Holmes said, “this day [is] the most sacred day of the year” (35). War, he explained, teaches that our “snug, over-safe corner of the world . . . is no eternal necessity, but merely a little calm in the midst of the” storm, and that we must always “be ready for danger. (36). Freedom, he reminds us, is not our birthright. We cannot treat it lightly; and it sometimes demands sacrifice. As President Eisenhower would later say: “History does not long entrust the care of freedom to the weak or the timid” (37).
The majority on the court argue in Abrams that the Constitution has never protected seditious speech (38). In fact, the very first Sedition Act was passed just seven years after the ratification of the Bill of Rights (39). Holmes counters that the Sedition Act of 1798 had in fact been unconstitutional (40). James Madison, drafter of the First Amendment, contemporaneously challenged its constitutionality, because it violated the “free communication among the people” (41).
Holmes was not persuaded by the arguments of his fellow justices (42). The Espionage Act, he wrote, was so broad it could stifle virtually any criticism of the government (43). He recognized a natural tendency to want to “sweep away all opposition” to one’s own viewpoint (44). However, he explained, “the best test of truth . . . is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the aims of government] safely can be carried out. That at any rate is the theory of our Constitution” (45). He actually called the leaflets “silly,” and observed that their distributors were virtual nonentities in the political landscape (46). On November 10, he read his dissent from the bench (47). The next day, America celebrated its first Armistice Day (48).
Holmes’s view did not prevail in 1919, but his dissent would ultimately become the foundation for the Court’s clear and present danger doctrine (49). In 1964, the Court would finally acknowledge the unconstitutionality of the original Sedition Act (50). It later barred President Nixon from exercising a prior restraint to suspend publication of the Pentagon Papers, a top-secret Department of Defense study about the history of the United States’ involvement in Vietnam (51). In another case, the Court overturned a man’s conviction of disturbing the peace for wearing a jacket outside a courtroom in Los Angeles that displayed a four-letter word to protest the draft during the Vietnam War era (52). A free marketplace of ideas must be prepared to tolerate insensitive and sometimes offensive speech.
As members of the legal profession, we have a unique and special responsibility to defend our constitutional rights and the rule of law. Lawyers and judges consistently have been the conscience of the community. Lawyers and judges have been the protectors of the poor, the weak, and the powerless. We have been the guardians of individual rights and individual liberties.
I would like to talk to you for a moment about veterans’ rights. Last week, I met with two veterans who are now law students. Both left the service with disability claims that took years to resolve and in one case is still not resolved. Erik Christensen and Kevin McCarthy are now working to assist other veterans reentering society. They want a dedicated Veterans Court in San Francisco to match resources with the needs of all veterans throughout the city. As of today, only the needs of veterans residing in the Tenderloin area are served, and only by the Homeless Court. I understand some of tomorrow’s panels include members of the San Francisco Superior Court. Perhaps a dedicated Veterans Court can be discussed.
I urge all of you to step up and assist veterans in securing their rights and benefits. Let us help them to secure the resources they need and the benefits they deserve. I told Erik and Kevin that we need more lawyers to follow the outstanding example of Gordon Erspamer in “standing up for vets.” Keith Wetmore, the former managing partner of Morrison & Foerster, said “Gordy is a scorched-earth trial lawyer. He is dogged. And that doggedness is fueled by [the] courage of [his] conviction” to Veterans (53). The case of Cushman v. Shinseki (54), took Gordy ten years to resolve. Mr. Cushman said, “Gordy’s the only reason I won. Because he didn’t give up on it. But how many veterans have an attorney like Gordon Erspamer?” The decision represented a landmark for veterans. It was the first time a court had ruled that veterans who apply for benefi ts have due process rights. Formerly, such rights were only granted to veterans who were already receiving benefits.
I ask you to stand with Gordy and Erik and Kevin and offer your assistance to our distinguished veterans who have served and sacrificed. Join these dedicated attorneys to ensure that our promises to our veterans are kept. Following my talk, Gordon Erspamer, Judge James McFetridge of the Sacramento Superior Court, and Judge Henry Wingate of the U.S. District Court, Southern District of Mississippi, will hold a conversation about what needs to be done.
I am now going to utter the two most important words in any speech: In conclusion . . . . After World War II, the great general Omar Bradley, while serving as the Administrator of the VA, had this to say about freedom: “No word was ever spoken that held out more hope, demanded greater sacrifice, needed more to be nurtured, blessed more the giver, cursed more its destroyer, or came closer to being God’s will on earth. . . . [T]hat’s worth fighting for. (55).” About 60 years earlier, on Memorial Day in 1884, Justice Holmes said: “To fight out a war,” or “to carry anything else to an end worth reaching,” “you must believe something . . . with all your might.” “More than that, you must be willing to commit yourself to a course…without being able to foresee exactly where you will come out. All that is required . . . is that you [try] as hard as… you can. The rest belongs to fate” (56). To all of you here tonight, and especially to those of you who are, or hope someday to be, members of the legal profession, I urge you to believe in the principles of the Constitution with all your might, to commit yourself to freedom and the rule of law, and to try as hard as you can to improve our legal system, which I believe is the best in the world, even with all its flaws. Let us face the challenges of our time with the same courage, conviction, and resolve as those who have bravely gone before us. Let us fulfill the plea of Abraham Lincoln as he stood upon the battleground at Gettysburg exactly 150 years ago: let us “resolve” that our “honored dead . . . shall not have died in vain,” that this nation “shall have a new birth of freedom,” and “that government of the people, by the people, for the people, shall not perish from the earth” (57).