In recounting past conflicts between civil liberties and national security concerns in times of war, Geoffrey Stone's book, "Perilous Times: Free Speech in Wartime," has much to say about the nation's current situation.
By David M. Skover|December 03, 2004 at 12:00 AM
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“Perilous Times: Free Speech in Wartime” by Geoffrey R. Stone (W.W. Norton & Co., 684 pages, $35) All societies live by myths, and no society can live without them. Myths arenarratives that furnish the organizing principles for society and its culture.Myths make life within society tolerable, meaningful — indeed, possible. America, too, lives by and through its myths. At various points in itsdevelopment, the American culture fostered the nation-building myth of manifestdestiny, the capitalist myth of the unregulated marketplace, and the politicalmyths of civic democracy and social equality. Among the greatest of America’smyths, however, is that of the First Amendment — that we, as a society, trustin a free marketplace of ideas and beliefs to discover our governing truths, andthat we, as a polity, invite and protect civic dissent. One key purpose of the First Amendment, properly understood, is to teachtoleration for political and social dissent and to uphold the expressive rightsof dissenters. At its best, then, the First Amendment creates a safe haven forranters who debunk society’s entrenched values, so as to open our eyes to newperspectives. At its worst, when the First Amendment fails in its great mission,it permits the persecution and prosecution of our value-busters. HISTORY OF REPRESSION Unquestionably, the noble myth of the First Amendment malfunctions mostseriously in times of war or anticipated war. It is then that our nation’sleaders and much of its citizenry have too often been willing to trade a fullmeasure of speech freedom for the illusion of greater security. Our expressiveliberties have been most endangered precisely when they should have been mostengaged. So it was in 1798 when American fears of an impending war with France werewhipped up by the Federalist administration of President John Adams. Congresspassed the first federal Sedition Act, which criminalized any maliciouscriticism of the government. No French sympathizers were ever found andprosecuted, but the act was enforced against members of Thomas Jefferson’sRepublican Party who challenged Federalist policies. So it was in World War I when, fearing German-American spies, Congress passedthe Espionage Act of 1917 and the Sedition Act of 1918. More than 2,000prosecutions were brought under those laws before and after the armistice, andmore than a thousand convictions were secured, almost all of them forquestioning conventional beliefs that the American war effort was principled andrighteous. A minister was sentenced to 15 years for preaching that the war wasun-Christian. A newspaper editor served time for writing that the war was thework of Wall Street. And Eugene Debs was imprisoned for a similar”crime” — declaring the war to be a capitalist plot. Not a singletraitor was discovered, but political dissenters, pacifists, and labor radicalswere silenced. So it was again in World War II, when tragic trades of liberty for ostensiblesecurity were made during the 1940s with the West Coast relocation andinternment of Japanese-Americans and with federal and state”witch-hunts” of socialists, fascists, and communists accused ofconspiring against military recruitment or advocating the violent overthrow ofgovernment. And the “devil’s bargain” of liberty for security was struck once morebetween 1951 and 1956 as congressional McCarthyism supported the fanatical mythof communist governmental infiltration by suppressing unpopular political ideasand associations. A REMARKABLE COMPENDIUM These sordid chapters of American free speech history — and several others –are the subjects of Geoffrey R. Stone’s masterful book, “Perilous Times.”Former dean of the University of Chicago Law School and lead author of arespected constitutional law casebook pored over yearly by thousands of Americanlaw students, Stone has applied his formidable talents to examining thepolitical and legal battles over First Amendment rights of civic dissent inseven periods of American history: the “half war” with France, theCivil War, the first and second World Wars, the Cold War, the Vietnam War, andour current “war on terrorism.” The legal practitioner or jurist may be most intrigued by Stone’s absorbingaccounts of the factual backgrounds and rulings in seminal First Amendmentwartime cases (from Masses, Schenck, Debs, and Abramsthrough Dennis and Yates to more current decisions that cast doubton those precedents). Happily, Stone’s analysis of judicial doctrine isdelivered in a dynamic and jargon-free prose style that enables lawyers and layreaders alike to understand the case law; and his critiques of the cases arethoughtful, poised, and evenhanded enough to ruffle the feathers ofcard-carrying liberals and code-carrying conservatives alike. For the college or law student and the educated nonlawyer, Stone providesfascinating narratives of the sociopolitical contexts that set the stage forwartime free-speech struggles. Readers learn of the presidents (the purportedlyspeech-protective Lincoln versus the speech-repressive Adams, Wilson, Roosevelt,and Nixon), the attorneys general (the speech-respectful Frank Murphy, RobertJackson, and Francis Biddle versus the speech-disrespectful John Mitchell), thefederal lawmakers (from Rep. Matthew Lyon, R-Vt., the first person indictedunder the Sedition Act of 1798, to Rep. Martin Dies, D-Texas, the firstchairman of the House Un-American Activities Committee, and Sen. Joseph McCarthy, R-Wis., who conducted a Cold War campaign of character-assassination on scoresof alleged Soviet spies), the educators (especially University of ChicagoPresident Robert Maynard), and the activists (such as Vietnam War protesterDavid Dellinger of the Chicago Seven fame) — all of whom played prominentroles in First Amendment history. Through colorful anecdotes on such figures, Stone demonstrates that our FirstAmendment freedoms depend not only on enlightened judges but also on a fullspectrum of liberty-loving public officials and private citizens. “Perilous Times” should also impress legal historians and constitutionalscholars. It is exhaustively researched, and its detailed and informativeendnotes comprise 132 pages of 8-point text. Academics accustomed to theobsessive-compulsive citation practices of university law reviews and legalpractice journals will not be disappointed by Stone’s thorough source authority. FOUR LESSONS Beyond those audiences, anyone who truly cares about the American culture ofcivil liberties will appreciate the critical lessons that emerge from thisvoluminous free-speech history. There are at least four such lessons.
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