April 7, 2005
The Times That Try Free Speech
by Craig Bernthal
Private Papers

Geoffrey Stones, Perilous times: Free Speech in Wartime from the Sedition Act to the War on Terrorism. (W.W. Norton & Co., 2004)

“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . . They knew that . . . fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

This paragraph, from Justice Louis Brandeis famous concurring opinion in Whitney v. California (1927) sets forth the theme of Geoffrey Stone’s fine study, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. As its title indicates, the book concerns itself with those times which are most dangerous to free speech and which therefore have provided the strongest impetus for all three branches of government to consider the parameters of free political speech.

Hysteria breeds repression, but repression, in our history, has always bred it’s own counter-reaction in favor of civil liberty, and so our nation’s trajectory, overall, has been toward the protection of political dissent. Stone, a constitutional lawyer and former dean of the University of Chicago Law School, is as qualified as anyone in the country to write on this subject.

Stone focuses on six major incidents in American history and their effect on the development of First Amendment law: the 1798 Sedition Act, which a predominately Federalist Congress passed in the face of an approaching war with France; the Civil War; World War I, World War II, the Cold War and McCarthy period; and the Vietnam War. In reading this book, one gets the sense that Stone must have been a fine classroom teacher. He operates in the traditional manner, by laying down a detailed historical account of each period under consideration and then showing how judges deciding particular cases responded to the heat and pressure of the times. Stone’s thick description and bottom up reading are all too rare in heavily theoretical university classrooms. Stone gives lay readers a deeper understanding of the First Amendment than they’d be likely to get in law school.

The history of the First Amendment’s free speech clause provides little comfort to strict constructionists. At the outset, Benjamin Franklin commented that, “few of us” have any “distinct Ideas of its Nature and Extent.” The Amendment’s reach is anything but absolute: the courts have identified vast areas of speech to which it gives little or no protection: libel, slander, cries of “fire” in theaters, or incitements to imminently commit crimes. In addition we have laws regulating advertising, obscenity, and even political speech (lobbying regulations and campaign finance reform).

What protection the First Amendment gives to criticism of the government, especially in time of war, was initially an open question, first addressed in the Adams’ administration during the “half-war with France,” In 1798 a Federalist congress passed the Sedition Act, making it a crime to “write, print, utter, or publish . . . any false, scandalous, and malicious writing” bringing anyone in the government into disrepute. When the Republicans under Jefferson and Madison asserted that the law violated the First Amendment, the Federalists claimed that the amendment incorporated English common law restrictions on criticism of the government, even if such criticism was true, as set forth in Blackstone’s Commentaries. Madison responded that the First Amendment was a uniquely American break from English common law. The law was used to jail several Republican critics of the Adams administration and stirred up so much opposition that John Adams was happy to let it expire in 1801. Thus, the first precedents were set.

During the Civil War period, Stone shows the Lincoln administration to be surprisingly tolerant of critical speech. Lincoln respected free speech, not only because he had made his own highly critical speeches of the Polk administration and the Mexican War, but to keep the border states and Copperhead portions of Ohio and Illinois attached to the Union. At many points in the book, Stone broadens his study to broadly include civil liberties, and his focus in the Civil War section is on Lincoln’s suspension of habeas corpus, which Chief Justice Taney in Ex Parte Merryman found to be unconstitutional, a decision which Lincoln simply ignored until the end of the conflict.

The period of World War I and the following “Red Scare” turns out to be the most repressive in American history. Although Congress did not intend the Espionage Act of 1917 to suppress all criticism of the war and the draft, the Wilson administration used it to do just that. Federal judges who stood against the constitutionality of the Espionage Act—George Bourquin of Montana, Charles Amidon of Dakota, and Learned Hand—were overruled and vilified. At this point, the Supreme Court, as the ultimate definer (“creator” is the more accurate word) of the First Amendment, first exerts its influence in the great dissenting opinions of Oliver Wendell Holmes and Louis Brandeis. Perhaps the most fascinating story in the book is watching the transformation of Holmes, one of the great intellectuals of American history, from conservative to libertarian on these issues.

World War II is largely the story of three attorney generals, Robert Jackson, Frank Murphy, and Francis Biddle, in their partially successful attempts to protect civil liberties. By the end of World War II, Stone shows that direct attack on dissenting speech was virtually impossible, causing a shift in repressive tactics, such as humiliation before the HUAC during the McCarthy period or FBI surveillance during the Vietnam War. But as Stone notes, free speech brought down two presidents during the Vietnam period and protected the publication of the Pentagon Papers. 

The virtues of this book lie in Stone’s nuanced arguments and the way in which he brings history to bear on case law. The book has two flaws, perhaps, which are minor. First, Stone dismisses the communist threat during the McCarthy period too lightly. He downplays the real threat the country faced, and does not even mention that KGB files have corroborated much of Whittaker Chambers’ testimony against Alger Hiss. Second, Stone gives only seven pages in his 700 page book to the “War Against Terrorism.” Given the book’s title, and Stone’s obvious motives for writing it, this is a bit of a cop out.

There are plenty of reasons to be nervous about the PATRIOT Act, but we get very little analysis of it. Even a hypothetical or two on free speech in the age of terrorism would have been welcome. If, for instance, an Islamic cleric in the United States were to advocate jihad against targets in the United States, should the Supreme Court consider such speech to be protected under the First Amendment? The standard that would be applied is stated in Brandenburg v. Ohio (1969): “. . . the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Given our experience on 9/11, what do the words “imminent” and “likely” mean?