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.”