Ask Americans to enumerate their civil liberties and they instinctively turn to freedom of speech and the press. Many assume that these freedoms have been enjoyed more or less continuously since 1791, when the Bill of Rights was ratified. In fact, for much of our history numerous legal and extralegal obstacles have confronted dissenters hoping to publicize their views, hold meetings, picket and distribute literature. Consciousness of the importance of free speech developed gradually and unevenly. In Perilous Times, Geoffrey R. Stone offers a compelling account of a crucial part–but only a part–of this checkered history.
Stone’s focus is free speech in wartime, and it is not a happy story. Time and again, war has led to serious restrictions on civil liberties. The book examines six historical moments during which the government has tried to punish individuals for their beliefs–the “quasi-war” with France of the late 1790s; the Civil War; World War I; World War II; the cold war; and Vietnam. For each episode, Stone sketches the cast of characters involved in free-speech cases and provides detailed examination of debates over the proper limits of civil liberties in wartime. A professor at the University of Chicago Law School, Stone makes his sympathies clear at the outset: “dissent in wartime can be the highest form of patriotism.” Governments, unfortunately, rarely see it that way.
Each of Stone’s episodes bears lessons for the present. He begins in 1798, when the Administration of John Adams, faced with the threat of war with France and a growing Jeffersonian opposition at home, moved to silence political dissent. The Alien Act allowed the President to deport foreigners he deemed dangerous. The Sedition Act essentially made it illegal to criticize the government. Most of the seventeen people indicted under its provisions were Jeffersonian editors, including Matthew Lyon, a Vermont Congressman who published the Scourge of Aristocracy and Repository of Important Political Truths. Lyon received a $1,000 fine and a four-month jail sentence.
Unlike the recent USA Patriot Act, the Sedition Act was actually read and debated in Congress. Federalists, drawing on an old tradition of English law that defined “prior restraint” as the greatest threat to a free press, insisted that since the act eschewed pre-publication censorship and allowed truth as a defense, it did not violate the First Amendment. Jeffersonians insisted that for the government to punish the expression of ideas endangered democracy. Jefferson’s election in 1800 put a stop for more than a century to federal legislation against political dissent.
Stone then jumps to the Civil War, offering a careful examination of President Lincoln’s arguments for suspending the writ of habeas corpus and allowing military tribunals to try civilians outside war zones. He notes the damage to civil liberties but makes clear that Lincoln took pains to mitigate the excessive actions of subordinates. Not all of his successors were so scrupulous.
During World War I Woodrow Wilson, as assured of the righteousness of his crusade to remake the world as any member of the Bush Administration, insisted that people he deemed disloyal had “sacrificed their right to civil liberties.” Stone points out that when Congress passed the Espionage Act of 1917, the first national law to punish political speech since 1798, it rejected some of Wilson’s extreme proposals, including a provision authorizing the government to censor the press and punish “disaffection.” But by 1918, when Congress passed the Sedition Act, such caution had evaporated. That law forbade writing or making any statement that brought the government into “disrepute.”
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The arrest of numerous Americans for speeches and publications critical of the war effort forced the Supreme Court for the first time to deal with free-speech issues. In its initial decisions, Stone relates, it dealt the concept of civil liberties a devastating blow. In 1919 it upheld the convictions of Charles Schenck, who distributed leaflets urging political action against the draft, and of Eugene Debs for a speech condemning American involvement in the war. Justice Oliver Wendell Holmes declared that the First Amendment did not prevent Congress from prohibiting speech that presented a “clear and present danger” of inspiring illegal actions.
During World War II, the Administration of Franklin Roosevelt actively promoted freedom of expression as one of the key differences between American liberty and Nazi tyranny. Freedom of speech took its place as one of the Four Freedoms Roosevelt promised to extend to the entire world after the war. The Supreme Court, Stone writes, “played a cautiously speech-protective role,” overturning, for example, the conviction of Jehovah’s Witnesses who refused to salute the American flag. (Of course, it also upheld the internment of more than 100,000 Japanese-Americans, the greatest violation of civil liberties in American history other than slavery.)
The progress of free expression proved tentative and partial. The postwar years witnessed a “steady erosion” of support for civil liberties. Stone strongly criticizes President Harry Truman for establishing a series of tribunals at which government employees were asked to respond to ill-defined charges of disloyalty (which often included union activism and support for civil rights) by unnamed informants. Truman hoped the program would insulate him from Republican criticism. But, writes Stone, his actions “laid the foundation” for the ensuing “anti-Communist hysteria.”
At first, in the words of Justice William O. Douglas, the Supreme Court ran “with the hounds,” affirming the conviction of Eugene Dennis and other Communist leaders for the vaguely defined charge of “conspiring to advocate the overthrow of government.” Stone’s analysis of the Dennis case underscores the dangers that exist when judges succumb to the temper of the times or defer unquestioningly to the President’s judgment as to whether a threat to national security actually exists. Not until 1957, after the Senate had censured Joe McCarthy, did the Supreme Court put an end to the prosecution of Communists, and it soon went on to eviscerate federal and state loyalty programs.
During the Vietnam War, the last of Stone’s episodes, the Court demonstrated how far it had traveled from World War I. In 1968 it did uphold the conviction of a war protester for burning his draft card, rejecting the claim that this action should be considered symbolic speech. But in the Pentagon Papers case it allowed the publication of classified government documents whose release was certain to affect the war effort–quite a change from the World War I jailing of dissenters who circulated innocuous antiwar leaflets. Government efforts against dissent hardly ceased, but apart from a few unsuccessful conspiracy indictments, they now took the form of FBI disruption of antiwar and civil rights groups rather than the prosecution of dissenters.
Overall, Perilous Times tells a story every American should know, and tells it well. It provides an almost encyclopedic account of the evolution of legal doctrine concerning dissent, and perhaps the best available analysis of the legal questions relating to free speech in wartime. Why, then, did I experience a growing feeling of unease as I read through the volume? The reason lies in Stone’s myopic definition both of free speech and the threats to it.
Perilous Times reflects the strengths and limitations of a certain kind of law school history–a history that revolves around federal laws and constitutional cases, and whose heroes are jurists and lawyers. Stone’s understanding of free speech flows from the First Amendment, which defends our civil liberties against violations by Congress (subsequently interpreted by the courts to include all agencies of government). The amendment does not prohibit the suppression of free speech by private individuals and institutions, and thus Stone devotes little attention to the way nongovernmental actors have affected freedom of expression. Employers can fire people because of their political beliefs, and consolidated media can decide what views do not deserve to be printed, without violating the First Amendment.
This focus on repression by government explains why Stone chose to study free speech only during wars. In peacetime, which, according to his calculation, represents 80 percent of our history, “the United States does not punish individuals for challenging government policies.” Stone’s account leaves the impression that respect for freedom of expression is the “default” position of American society, upset from time to time by war hysteria. History does not bear this out.
A broader view of the subject would include the numerous violations that have occurred in peacetime, sometimes by the federal, state and local governments, often by private parties. Stone, for example, states that between 1800 and the Civil War, the federal government “did not attempt to silence criticism of national leaders or policies”–ignoring the fact that state-level prosecutions for seditious libel continued long after the national Sedition Act expired in 1801. Even on its own terms, the statement is factually incorrect. In the 1830s the House of Representatives’ “gag rule” prohibited the consideration of antislavery petitions, and the Administration of Andrew Jackson allowed Southern mobs to remove abolitionist materials from the mails. Indeed, Stone’s formulation ignores the centrality of the slavery controversy to the growth of civil liberties. In response to the disruption of their meetings and the killing of an abolitionist editor, critics of slavery elevated freedom of expression to a central place in the definition of American liberty. Even though their campaign occurred in peacetime, it forms an essential part of the history of free speech.
Similarly, in the twentieth century grave threats to freedom of speech have come from local governments and private groups, and “normal” times have seen their share of repression. While Stone mentions the depredations of organizations like the American Protective League, which rounded up suspected draft dodgers during World War I, and the widespread blacklisting by employers during the McCarthy period, he devotes little attention to their actions since they did not raise a constitutional question. He deals with Japanese internment but says nothing about other ways racism has affected the suppression of free speech, including the lynching of blacks who spoke out against the South’s racial order, and numerous state and local efforts to suppress the NAACP.
Stone highlights the bravery of federal judges Charles Amidon, George Bourquin and Learned Hand, who challenged the hysteria of World War I by dismissing indictments of war critics. But equally heroic battlers for free speech go unmentioned–anarchists who combated state “criminal syndicalism” laws; the Industrial Workers of the World (IWW), which campaigned against local ordinances that limited public speaking; birth-control advocates who fought for the right to distribute information about reproduction and contraception in the face of national and local obscenity laws; immigrants who resisted state laws that prohibited teaching in a language other than English.
Most of these struggles never got to the Supreme Court, so they do not form part of the history of constitutional law. But they helped to shape a civil liberties consciousness that eventually influenced Congressional policies and Court decisions. For example, the exposure during the 1930s of the violent methods used by employers to combat unionization played a crucial role in making the federal government for the first time a protector of freedom of expression. With its restrictions on employers’ antiunion activities, the Wagner Act of 1935 was, among other things, a landmark in the development of free speech.
Many readers will be disappointed that Stone devotes only a handful of pages to the free-speech implications of the “war on terrorism.” But he makes it clear that the lessons of history are not encouraging. “The United States,” he writes, “has a long and unfortunate history of overreacting to the dangers of wartime.” American political leaders have frequently blurred the line between treason and dissent, raised the specter of internal subversion and inflamed public fears for partisan purposes.
The history of free expression–in peacetime as well as war–underscores the fragility of civil liberties in the face of assertive patriotism. Not long after the attacks of September 11, the journalist Jay Winik argued in the Wall Street Journal that since restraints on civil liberties in earlier wars had no lasting effect, we should not be concerned about parallel actions today–“when our nation is again secure, so too will be our principles.” Stone’s account offers a powerful rebuke to such complacency. The episodes he relates did indeed have enduring consequences. World War I repression destroyed the IWW, the Socialist Party and much of the mainstream labor movement. McCarthyism dealt a severe blow to all sorts of movements for social change and severely limited the acceptable boundaries of political criticism among intellectuals.
Given that the “craving for security at any price” has more than once led to public acquiescence in restraints on civil liberties, Stone insists on the necessity of having in government people with a commitment to civil liberties. No such person exists in the Bush Administration.
