Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism
by Geoffrey R. Stone
The More Things Change...
A review by Doug Brown
Free speech is something that is nowadays considered an inviolate part of the
American experience. However, as Geoffrey Stone elucidates in Perilous Times,
it wasn't always so. It wasn't until World War I that the Supreme Court started
to truly examine the First Amendment. As each subsequent decision has been made,
free speech has slowly evolved into the institution we know now. Dissent wasn't
considered necessarily protected until midway through the twentieth century. By
the end of Vietnam, the court's definition of unprotected speech fell into an
increasingly small set of specific conditions, as Stone summarizes: "There
must be express advocacy of law violation; the advocacy must call for immediate
law violation; and the immediate law violation must be likely to occur."
That's a far cry (no pun intended) from where it started out.
Perilous Times begins with the Sedition Act of 1798, which is probably
the most blatant bit of political dissent-quashing in America's history. The
act was used by the Federalist majority to punish Republicans who spoke against
the Federalist administration. Two giveaways of the act's clear intent were
(1) the president and congress (Federalists) were exempted from the act, but
the vice president (Jefferson, a Republican) wasn't, and (2) the act ended the
day Adams left office, so it couldn't be used by the next administration against
the Federalists. So much for our noble founding fathers.
Debating Polk's declaration of war on Mexico in 1848, Abraham Lincoln's law
partner argued the president should have the right to declare war on another
country to repel invasion. In an amazingly prescient bit of writing, Lincoln
disagreed: "Allow the president to invade a neighboring nation whenever
he shall deem it necessary to repel an invasion, and you allow him to do so
whenever he may choose to say he deems it necessary for such purposes,
and you allow him to make war at pleasure. Study to see if you can fix any
limit to his power in this respect after having given him so much as you
propose. If to-day he should choose to say he thinks it necessary to invade
Canada to prevent the British from invading us, how could you stop him? You
may say to him, 'I see no probability of the British invading us'; but he will
say to you, 'Be silent; I see it, if you don't.'"
World War I was a particularly dark time in America for free speech. Wilson's
administration was vigorously aggressive in smashing down any anti-war or anti-draft
talk. For instance, a reverend was convicted for distributing a pamphlet stating
"if Christians [are] forbidden to fight to preserve the Person of their
Lord and Master, they may not fight to preserve themselves, or any city they
happen to dwell in." He was sentenced to fifteen years in prison. Another
man was sentenced to a year in jail for "attending a meeting, listening
to an address in which disloyal utterances were made, applauding some of the
[disloyal] statements made by the speaker…and contributing 25 cents."
A filmmaker was sentenced to ten years for making a film about the American
Revolution which showed British soldiers bayoneting women and children. The
government argued the images "may have the tendency of sowing…animosity
or want of confidence between us and our allies." After the war came the
first Red Scare, in which a young J. Edgar Hoover came to eminence by heading
a division of the FBI which spent its time gathering information about suspected
leftists and deporting them.
World War II was a bit better for free speech, with the black exception of
the Japanese-American internment camps. The FBI had rounded up all suspected
Japanese-American security threats immediately after Pearl Harbor, so from the
FBI's perspective the remaining population posed no threat. The military agreed
that internment was unnecessary. But 1942 was an election year, and Roosevelt
wanted to give the voters the impression the Democrats were addressing the Asian
problem, so he issued Executive Order 9066, which created the camps. By 1943
and early 1944 everyone agreed they were no longer needed, but Roosevelt waited
until after the 1944 election to announce the closing. He also delayed publication
of a Supreme Court decision declaring the camps unconstitutional until the day
after he announced the camp closings. Roosevelt created the camps for campaign
politics, and then he waited until he got re-elected again to close them. Nice.
The one non-wartime section included in the book is the post-WWII Red Scare,
a bleak and besmirched chapter in American history, all around. Again and again
it was proven that you don't have to have data or facts to get people riled
up; you just have to claim you do. The actual evidence becomes what Alfred Hitchcock
called a "McGuffin;" the thing the story is built around, and yet
is itself irrelevant. McCarthy held up a piece of paper claiming to have the
names of Communists in the State Department, and the seed was planted. He never
had to actually show anyone the piece of paper; once he had planted the seeds
of doubt, the hounds were let slip. Then, even if the original evidence were
found to be false, people will still believe the charge may have had merit.
It still works today (Uranium yellow cake from Niger, anyone?), so it is important
to always question fear-sowing charges made by elected officials. As Stone summarizes,
"People routinely overreact to vivid descriptions of frightening, but low-probability,
One of the most pervasive themes in Perilous Times is summed up by the
adage, "the more things change, the more they stay the same." The
debates about free speech during the Sedition Act are amazingly similar to debates
about the Patriot Act today. Past discussions surrounding the suspension of
habeas corpus sound very much like today's discussions of Guantanamo detainees.
Two hopeful themes Perilous Times offers are that attacks on free speech
today are nothing compared to the guttings of the past, and that while free
speech often suffers during wartime, it also usually recovers stronger than
before. Stone's bottom line message is we as citizens must remain vigilant.
We can't rely on our elected officials, or even the courts, to always do the
right thing: "Laws punishing dissent are especially appealing to public
officials in wartime because they are relatively inexpensive, cater to the public's
witch-hunt mentality, create the illusion of decisive action, burden only those
who already are viewed with contempt, and enable public officials to silence
their critics in the guise of serving the national interest." If
you are at all concerned about the issue of free speech and methods that have
been used to attack or limit it in the past (and the present), Perilous Times
is a must-read.