Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism
By Geoffrey R. Stone
Norton, 730 pages, $35
Are civil liberties and the right to dissent timeless political virtues in the United States or are they contingent upon the beliefs–even whims–of elected leaders? For much of the nation’s history, Geoffrey R. Stone compellingly argues in “Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism,” civil liberties and dissent have not only been tolerated but also protected, even cherished. But that holds true only during periods of peace. In wartime, dissent comes with a price tag some Americans, especially political leaders, are usually unwilling to pay.
“Are those who dissent in time of war ‘disloyal,’ ” Stone asks, and do the “demands of war justify the suppression of dissent?” Supporters of American foreign policy in and out of government have often, if not always, answered in the affirmative, conflating dissent with disloyalty. Accordingly, they have acted decisively to restrict the freedom of speech and, at times, to crush open expressions of opposition. The prosecution of war and the tolerance of political dissent have rarely gone hand in hand, concludes Stone, a legal scholar and former dean of the University of Chicago Law School.
In this timely and highly readable book, Stone offers six lengthy case studies of what he portrays as the unnecessary and harmful restrictions of the right to dissent. “Time and again,” Stone writes, “Americans have allowed fear and fury to get the better of them. Time and again, Americans have suppressed dissent, imprisoned and deported dissenters.” These regrettable wartime legacies of political repression, he believes, can instruct us to seek ways of avoiding repression in the future.
The arguments for the suppression of free speech and dissent–or for put-ting curbs on them–are simple and familiar: With the nation at war and our soldiers at risk, speech or behavior that threaten the nation’s ability to carry out military action imperil the nation and the brave men and women who fight battles on our behalf. Given the unusual dangers faced by the country and its armed forces, is it asking too much to ban or restrict temporarily any speech or action that would undermine either?
Stone disagrees sharply with this assessment. In his close examinations of the Alien and Sedition Acts of 1798, the Civil War, World Wars I and II, the Cold War and the Vietnam War, he responds by demonstrating that the country has repeatedly overreacted to the “perceived dangers of wartime.” In each case, political leaders hardly acted disinterestedly and dispassionately; in each case (the Civil War was some-thing of an exception), “national leaders cynically exploited public fears for partisan political gain,” fomented “public hysteria in an effort to unite the nation in common cause,” or “simply caved in to public demands for the repression of ‘disloyal’ individuals. ” Presidents John Adams, Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson, Richard Nixon and, in a brief cameo role, George W. Bush, come across less as noble statesmen and patriots than as self-interested political actors who invoke the “necessities of war” as a cover for their “partisan exploitation” of national crises.
The passage of the Alien and Sedition Acts in 1798 set the pattern for much of what was to follow. As the young United States readied itself for possible war against revolutionary France, the Federalist Party’s legislators in Congress devised a Sedition Act that subjected to criminal penalty anyone who would “write, print, utter or publish . . . any false, scandalous, and malicious writing or writings against the government” with “intent to defame [them], or bring them [into] contempt or disrepute.” This legislation, Stone observes, “quickly rationalized out of existence” the nation’s “commitment to civil liberties.” The Alien Enemies Act that followed allowed for the detention and deportation, at the president’s discretion, of any subjects of foreign countries with whom the U.S. was at war; the Alien Friends Act went further, authorizing Federalist President Adams to detain and deport any non-citizen, whether or not the U.S. was at war with the non-citizen’s country, he considered to pose a danger to the U.S.
In the two-party political system that was just emerging, the opposing Republican Party (no relation to our current Republican Party) cried foul. The Alien Friends Act was a ” ‘monster,’ ” declared James Madison; it was ” ‘detestable,’ ” Thomas Jefferson added. Hostile to French sympathizers and free speech, Federalists in-voked the Sedition Act against their political opponents, both politicians and newspaper editors. Federalists prosecuted, convicted and imprisoned U.S. Rep. Matthew Lyon, known to his detractors as the “Beast of Vermont.” His crime consisted of condemning Adams for grasping for power at the expense of the public welfare and criticizing his administration for fostering ” ‘ridiculous pomp, foolish adulation, and selfish avarice.’ ” For these words he was charged under the Sedition Act with trying to bring Adams into public contempt. Before the act expired in 1801, some 25 Republican leaders or activists were arrested, and 10 of them were ultimately convicted.
For Stone, the period’s lessons are stark. First, “Fear, anger, and an aroused patriotism can undermine sound judgment,” leading to over-reaction, the suppression of individual liberties and the “mutilation of public discourse.” Second, politicians may exploit a “threat to the nation’s security to serve their partisan ends” and consolidate their own power by whipping up the public in a patriotic fervor and tarring their opponents as disloyal. An initial war fever might be understandable, but from the late 18th Century to the present, “opportunistic political leaders” have engaged in “cynical efforts” to manipulate the public “in order to create national hysteria.” And third, those who value civil liberties and free speech cannot always (or even usually) count on the courts to preserve their constitutional rights. Judges, Stone reminds us throughout his book, do not live in an isolated universe cut off from the political passions and fears of their times. Rather, they share the fears and prejudices of those in power and often, if not always, defer in wartime to the executive branch’s claims of national danger.
But the lessons of war are rarely learned for long, or at least they are forgotten by the time the next war breaks out. Of all the wartime presidents Stone examines, only Abraham Lincoln resisted the impulse to crack down on the wide-spread opposition to his war policies. Subject to unceasing vilification by Democratic Party editors and stump speakers who opposed abolition, hated blacks and demanded he make peace immediately with the ceded Confederate States of America, Lincoln “did not overreact” and resisted the passage of any sedition law, although there were “serious abuses in the suspensions of habeas corpus” and the occasional prosecution of anti-administration editors.
Lincoln was the exception to the rule, however. Under President Wilson, the government aggressively and mercilessly prosecuted anti-war activists along with immigrant and native-born radicals during and after World War I. Relying upon the newly enacted Espionage Act of 1917, Wilson declared that disloyal individuals ” ‘had sacrificed their right to civil liberties.’ ” Anti-war newspapers and journals were barred from the federal mails; federal agents and vigilante groups spied upon and harassed countless Americans; left-wing unions were suppressed; and opponents of the war were arrested, convicted and jailed. After the war, anti-radical and anti-immigration raids by the government rounded up thousands of suspected dissidents, many of whom were deported. For their part, the federal courts did little to protect dissent and free speech, concluding that during wartime, ” ‘serious, abrasive criticism’ was ‘beyond constitutional protection.’ “
If the government’s track record improved somewhat during World War II–the internment of Japanese Americans being a glaring and horrific exception–it deteriorated rapidly as the Cold War between the U.S. and the Soviet Union heated up in the late 1940s and early 1950s. The Cold War years were among the “most repressive periods in American history,” Stone reminds us. If his accounts of internal security review boards and federal loyalty programs, the prosecution of American communist leaders, and the antics of U.S. Sen. Joseph McCarthy and the complicity of Republicans and Democrats in his witch hunts are familiar ones, they serve well to underscore how unscrupulous politicians opportunistically use charges of disloyalty to discredit their political opponents.
To what extent did things change once the worst excesses of the anti-communist crusade receded by the 1960s? During the Vietnam War, the government pursued neither systematic nor wholesale efforts “to stifle dissent through criminal prosecution.” Stone portrays this as real progress, as he does President Johnson’s reluctance to verbally savage his anti-war critics. This “guarded response” to criticism reflects, for Stone, a “fundamental change in America’s constitutional culture.” (Nixon, on the other hand, did not hesitate to lash out at his opponents, publicly or privately.)
Then, in 1971, in a milestone decision, the Supreme Court rejected the Nixon administration’s demand that the press be barred from publishing the Pentagon Papers, the top-secret and often-damning government-sponsored history of the U.S. war in Vietnam that called many of the government’s claims into question. Publication of the Pentagon Papers was not only a “major event in the history of American journalism” but positive proof, in Stone’s eyes, that Americans–and the courts in particular–do learn from mistakes. For the “first time in American history,” he concludes, the Supreme Court “stood tall–in wartime–for the First Amendment.”
But that hardly meant that the government welcomed, or was even willing to tolerate, all dissent: Its obsessive interest in monitoring and, in some cases, discrediting dissent remained intact. This time, though, the targets changed. In place of Communist Party members, the FBI and other intelligence agencies took aim at anti-war protesters, Black Power advocates and the New Left. (Stone is largely silent on state governments’ denial of free speech to civil rights activists, and the federal government’s acquiescence, before and during the 1960s; that story would challenge his assertion that it is only in wartime that free speech is restricted by government.) Johnson and Nixon authorized a stepping up of behind-the-scenes repression of government critics. Only in the early 1970s did the extent of that repression become public, with exposes of such counter intelligence programs as COIN-TELPRO, which aimed to not merely spy upon but actively ” ‘disrupt and otherwise neutralize’ ” the New Left, and the creation of security lists of people to be detained in case of national emergency. The FBI, CIA, military intelligence and even the Social Security Administration all played their parts in investigating and harassing domestic critics of the government.
Where does that leave us today? Stone argues that it would be wrong to conclude that the Supreme Court “repeatedly learns just enough to scold the mistakes of the past, but never quite enough to avoid the mistakes of the present.” In his view, progress has been real, for the court “has learned over time that it is impossible to excise from public debate only those views that are thought to be ‘dangerous,’ without under-mining free speech more generally.” But what of the war on terrorism now being waged, with no end in sight? On this subject the book’s subtitle is misleading, for Stone devotes little attention to post-9/11 and the fate of civil liberties. That the federal government has “jailed no one for antiwar dissent” is both “a far cry” from our experiences in past wars and a “testament to the nation’s advance,” he believes. He takes some hope in the strong and successful public opposition to former Atty. Gen. John Ashcroft’s proposal to create a Terrorism Information and Prevention System that would have involved citizens monitoring–read spying on–other citizens, as well as opposition to the so-called Patriot Act II, which would have reduced even further judicial oversight of surveillance and otherwise increased the executive branch’s spying powers.
It is hard to reconcile Stone’s own guarded optimism with his brief but sharp attack on the impact of the Patriot Act, passed by Congress in the immediate aftermath of 9/11, and the Bush administration’s creative if troubling policies to-ward terror suspects at home and abroad. Stone, like many advocates of civil liberties, remains troubled by new government restrictions including “indefinite detention, with no access to judicial review, of more than a thousand noncitizens who were lawfully in the United States and had not been charged with any crime; blanket secrecy concerning the identity of these detainees; refusal to permit many of these detainees to communicate with an attorney; . . . secret deportation proceedings; . . . significant new limitations on the scope of the Freedom of Information Act; [and] expanded authority to conduct undercover infiltration and surveillance of political and religious groups.” As for the Bush administration’s “obsession with secrecy,” Stone sees this as having less to do with fighting terrorism than with shielding the executive branch from needed public scrutiny. His solution–the classic notion that the American people must be vigilant in the defense of their liberties–may, alas, be wishful thinking at this moment.
Although Stone only touches the surface of the war on terrorism, his informed and nuanced exploration of historical restrictions on wartime dissent and free speech are sobering and relevant to our current situation. “Perilous Times” has much to teach us today. Many of the matters he explores–particularly the political manipu-lation of fear and the consequences of unquestioned congressional and judicial deference to the wartime presidency–are relevent to our post -9/11 politics.
This important book reminds us that open government, an independent judiciary and an informed and active citizenry are, at a minimum, a prerequisite for the preservation of liberty in times of conflict. If Stone’s beliefs that we must foster a “culture of civil liberties,” that Congress must take the Constitution “more seriously” and that the executive branch should appoint defenders of civil liberties to its inner councils sound utopian, it is a sad indication of just how much of an uphill battle Stone and other champions of free speech and wartime dissent still have to fight.
