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PERILOUS TIMES: Protecting the Freedom to Dissent During War

It's hard to think of a scholarly study more timely than Geoffrey R. Stone's new book, "Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism."
At a time when the Patriot Act threatens to curtail civil liberties, at a time when Attorney General John Ashcroft has effectively dismantled guidelines restricting the F.B.I.'s authority to investigate political and religious activities, at a time when the Justice Department invokes "national security" concerns to try to seize reporters' telephone records, Mr. Stone's book arrives to give the reader a sagacious brief on the vital importance of the First Amendment and an illuminating history of the ongoing tension in American history between liberty and security.

Mr. Stone celebrates the principle, in the words of Oliver Wendell Holmes, that "the ultimate good" is best reached "by free trade in ideas," and that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." And he argues that if free speech is essential to self-governance in ordinary times, it is even more critical in wartime, as one of its chief functions is "to help the nation make wise decisions about how to conduct the war" and "whether its leaders are leading well."

In "Perilous Times," Mr. Stone - the Harry Kalven Jr. distinguished service professor of law at the University of Chicago - provides a visceral understanding of how First Amendment doctrine has evolved during the last two centuries. His narrative underscores the importance that the makeup of the Supreme Court has played in its deliberations over free speech, and the sometimes crucial role that individual presidents (along with their attorneys general) have played in urging restraint or in fueling anger at dissidents who have challenged their policies. At times Mr. Stone sounds like a law professor talking to a group of first-year students. At times he is more arcane, delving into the technical implications that landmark cases have had on later jurisprudence. But he never loses sight of the big picture: he does a lucid job of tracing patterns that have recurred throughout American history in times of real or perceived crisis (again and again, the threat is inflated, the public's sense of patriotism is inflamed, the lines between disloyalty and dissent are blurred) and explicating the fallout that fear has had on the country's commitment to robust and uninhibited debate.

Mr. Stone is at his most eloquent when writing as an attorney on behalf of the First Amendment. Impassioned yet methodical, he lays out the vital role that free speech plays in a healthy system of self-governance, using lots of case studies to illustrate his arguments while creating a devastating portrait of those public figures whose commitment to free speech has been weak or hypocritical. Woodrow Wilson, who tried to squelch any disharmony that might impede his mission of making "the world safe for democracy," comes off especially poorly, and Franklin D. Roosevelt emerges as a president who would support civil liberties in the abstract, "but not when they got in his way.''

In the entire course of American history, Mr. Stone observes, "the national government has never attempted to punish opposition to government policies, except in time of war." He cites six periods during which the United States attempted to punish individuals for criticizing government officials or policies:

¶Under President John Adams the Federalists enacted the Sedition Act of 1798, which prohibited any person from writing, publishing or uttering anything of a "false, scandalous and malicious" nature against the government of the United States; although it was supposedly adopted as a measure to strengthen the nation in an impending war with France, Mr. Stone argues, "it served primarily as a political weapon to strengthen the Federalists.''

¶During the Civil War, President Lincoln on eight separate occasions suspended the writ of habeas corpus (which enables a person who has been detained by government officials to seek a judicial determination on the legality of that detention); and individuals were arrested for speech critical of the administration.

¶During World War I the federal government prosecuted some 2,000 people for their opposition to the war and the draft; those convicted under the Espionage Act of 1917 and the Sedition Act of 1918 routinely received sentences ranging from 10 to 20 years in prison. President Wilson pushed without success to get a censorship provision included, arguing that "authority to exercise censorship over the press" was "absolutely necessary to the public safety."

¶During World War II 120,000 individuals of Japanese descent were interned. In the years preceding Pearl Harbor, a Congressional committee began investigating "the extent, character and objects of un-American propaganda activities in the United States"; the F.B.I. established an aggressive informer program; and Congress passed the Alien Registration Act of 1940 (the Smith Act), which forbade individuals to advocate the propriety of overthrowing the government by force.

¶During the cold war, President Truman established a loyalty program for all civilian government employees; the House Un-American Activities Committee, or HUAC, cited 135 people for contempt (more than the entire Congress had cited for contempt in the history of the country to that point); and Senator Joseph R. McCarthy launched his virulent rampage.

¶During the Vietnam War the F.B.I. carried out a wide-ranging program to "expose, disrupt and otherwise neutralize" dissident political activities; the federal government sought to enjoin The New York Times and The Washington Post from publishing the Pentagon Papers; and protesters were prosecuted for burning their draft cards and expressing contempt for the American flag.

Although Mr. Stone's account of the HUAC investigations, McCarthy's red-baiting and Vietnam-era showdowns between antiwar protesters and the Johnson and Nixon administrations will be familiar to anyone with even a cursory knowledge of those periods, he reiterates this material to map evolving attitudes toward free speech and to bolster his argument that "we may learn slowly, and only in fits and starts, but we do learn."

After each period in which the nation went too far in restricting civil liberties, Mr. Stone argues, "the nation's commitment to free speech rebounded, usually rather quickly, sometimes more robustly than before." A Congressional report declared that the Sedition Act of 1798 had been passed under a "mistaken exercise" of power and was "null and void." The Sedition Act of 1918, which was repealed two years later, helped give birth to the modern civil liberties movement. And in 1976, President Ford formally prohibited the C.I.A. from using electronic or physical surveillance to collect information on domestic activities of Americans, and the new F.B.I. director, Clarence Kelly, publicly apologized for F.B.I. abuses under J. Edgar Hoover.

Such developments buttress Mr. Stone's argument that "the major restrictions of civil liberties of the past would be less thinkable today than they were in 1798, 1861, 1917, 1942, 1950 or 1969," and that "in terms of both the evolution of constitutional doctrine and the development of a national culture more attuned to civil liberties, the United States has made substantial progress." Mr. Stone writes that in its 1971 Pentagon Papers decision (which held that the government had not met its "heavy burden of showing justification" for a prior restraint on the press), "the Supreme Court, for the first time in American history, stood tall - in wartime - for the First Amendment." That case was only one in a series of Vietnam-era decisions in which the court suggested its understanding, in Mr. Stone's words, "that dissent is easily chilled, that government often acts out of intolerance when it suppresses dissent, and that it is essential to protect speech at the margin."

While the reader may wish that Mr. Stone had spent more space in this volume analyzing the Patriot Act and post-9/11 attitudes toward civil liberties - he devotes a mere eight pages to the subject near the end of the book - this quibble should not detract from the overall achievement of this volume. Mr. Stone has written an important, indeed necessary, book on a freedom indispensable, as Justice Louis D. Brandeis put it, to "the discovery and spread of political truth": the "freedom to think as you will and to speak as you think."

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