WAR TALK: FREE
SPEECH IN TIMES OF ARMED CONFLICT
From Legal Times,
November 1, 2004, p. 26.
David M. Skover
All societies live
by myths, and no society can live without them. Myths are narratives 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 its
development, the American culture fostered the nation-building myth of manifest
destiny, the capitalist myth of the unregulated marketplace, and the political
myths of civic democracy and social equality. Among the greatest of America's
myths, however, is that of the First Amendment -- that we, as a society, trust
in a free marketplace of ideas and beliefs to discover our governing truths, and
that we, as a polity, invite and protect civic dissent.
One key purpose of the First Amendment, properly understood, is to teach
toleration for political and social dissent and to uphold the expressive rights
of dissenters. At its best, then, the First Amendment creates a safe haven for
ranters who debunk society's entrenched values, so as to open our eyes to new
perspectives. 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 most seriously in times of war or
anticipated war. It is then that our nation's leaders and much of its citizenry
have too often been willing to trade a full measure of speech freedom for the
illusion of greater security. Our expressive liberties have been most endangered
precisely when they should have been most engaged.
So it was in 1798 when American fears of an impending war with France were
whipped up by the Federalist administration of President John Adams. Congress
passed the first federal Sedition Act, which criminalized any malicious
criticism of the government. No French sympathizers were ever found and
prosecuted, but the act was enforced against members of Thomas Jefferson's
Republican Party who challenged Federalist policies.
So it was in World War I when, fearing German-American spies, Congress passed
the Espionage Act of 1917 and the Sedition Act of 1918. More than 2,000
prosecutions were brought under those laws before and after the armistice, and
more than a thousand convictions were secured, almost all of them for
questioning conventional beliefs that the American war effort was principled and
righteous. A minister was sentenced to 15 years for preaching that the war was
un-Christian. A newspaper editor served time for writing that the war was the
work of Wall Street. And Eugene Debs was imprisoned for a similar "crime" --
declaring the war to be a capitalist plot. Not a single traitor was discovered,
but political dissenters, pacifists, and labor radicals were silenced.
So it was again in World War II, when tragic trades of liberty for ostensible
security were made during the 1940s with the West Coast relocation and
internment of Japanese-Americans and with federal and state "witch-hunts" of
socialists, fascists, and communists accused of conspiring against military
recruitment or advocating the violent overthrow of government.
And the "devil's bargain" of liberty for security was struck once more between
1951 and 1956 as congressional McCarthyism supported the fanatical myth of
communist governmental infiltration by suppressing unpopular political ideas and
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 a respected constitutional
law casebook pored over yearly by thousands of American law students, Stone has
applied his formidable talents to examining the political and legal battles over
First Amendment rights of civic dissent in seven periods of American history:
the "half-war" with France, the Civil War, the first
and second World Wars, the Cold War, the Vietnam War, and our current "war on
terrorism."
The legal practitioner or jurist may be most intrigued by Stone's absorbing
accounts of the factual backgrounds and rulings in seminal First Amendment
wartime cases [from Masses, Schenck, Debs, and Abrams
through Dennis and Yates to more current decisions that cast doubt
on those precedents]. Happily, Stone's analysis of judicial doctrine is
delivered in a dynamic and jargon-free prose style that enables lawyers and lay
readers alike to understand the case law; and his critiques of the cases are
thoughtful, poised, and evenhanded enough to ruffle the feathers of
card-carrying liberals and code-carrying conservatives alike.
For the college or law student and the educated non-lawyer,
Stone provides fascinating narratives of the sociopolitical contexts that set
the stage for wartime free-speech struggles. Readers learn of the presidents
(the purportedly speech-protective Lincoln versus the
speech-repressive Adams, Wilson, Roosevelt, and Nixon),
the attorneys general (the speech-respectful Frank
Murphy, Robert Jackson, and Francis Biddle versus the speech-disrespectful John
Mitchell), the federal lawmakers (from
Rep. Matthew Lyon [R-Vt.], the first person indicted under the Sedition Act of
1798, to Rep. Martin Dies [D-Texas], the first chairman of the House Un-American
Activities Committee, and Sen. Joseph McCarthy [R-Wis.], who conducted a Cold
War campaign of character-assassination on scores of alleged Soviet spies),
the educators (especially University of Chicago
President Robert Maynard), and the activists
(such as Vietnam War protester David Dellinger of the
Chicago Seven fame) -- all of whom played prominent
roles in First Amendment history.
Through colorful anecdotes on such figures, Stone demonstrates that our First
Amendment freedoms depend not only on enlightened judges but also on a full
spectrum of liberty-loving public officials and private citizens.
Perilous Times should also impress legal historians and constitutional
scholars. It is exhaustively researched, and its detailed and informative
endnotes comprise 132 pages of 8-point text. Academics accustomed to the
obsessive-compulsive citation practices of university law reviews and legal
practice journals will not be disappointed by Stone's thorough source authority.
Four Lessons
Beyond those audiences,
anyone who truly cares about the American culture of civil liberties will
appreciate the critical lessons that emerge from this voluminous free-speech
history. There are at least four such lessons.
First, our federal and state governments have suppressed political dissent most
virulently when there was a collective sense of wartime threats to national
security. Second, with the acuity of hindsight, thoughtful persons have seen
that public officials, the media, and private citizens typically overreacted:
real free-speech dangers were not as great as
anticipated, and legitimate civic dissent paid an unacceptable price. Third, in
the worst of these periods, public leaders intentionally fueled the fires of
speech repression rather than tamping them down, often to serve their own
partisan or personal interests. And fourth, to keep the First Amendment from
turning cyclically into a dysfunctional myth in wartime, Americans must steel
the national cultural psyche in advance.
Stone recommends, among other salutary steps, that Congress adopt rules and
protocols (e.g., full committee investigation
before enacting wartime legislation, "sunset" provisions for speech-restrictive
measures, etc.) to check itself and the other branches
of government from over-reacting to public fears and exaggerating free-speech
perils. More importantly, Stone reminds us that a culture of free speech will
require the efforts of all public and private institutions -- education, media,
the legal profession, civil liberties organizations -- to teach the most
important lesson in defense of civic dissent: that fear is the first enemy of
freedom.
No work of this generous character is flawless, and Perilous Times has a
few faults, albeit minor ones. For a volume that apparently aspires to
encyclopedic stature, the book gives merely passing reference to the repressive
experiences of anti-war dissenters in the War of 1812, the Mexican War, and the
Spanish-American War. To study those episodes, Stone's readers must turn to the
excellent (and, sadly, out-of-print)
book by Samuel Eliot Morison, Frederick Merk, and Frank Friedel, Dissent in
Three American Wars (1970).
Furthermore, although Stone's opus recounts the violations of speech rights for
a full range of radicals and minorities, it does not mention the overwhelming
"chilling effects" on lesbian, bisexual, and gay expressive liberties caused by
the Cold War purges of "Commie-Pinko-Queers" from federal and state
bureaucracies. For example, an official report issued in 1950 by Republican
National Chairman George Gabrielson charged: "Perhaps as dangerous as the actual
communists are the sexual perverts who have infiltrated our government in recent
years;" by April of that year, 91 homosexuals had been fired from the State
Department alone, and others working in the public sector felt at risk. Nor does
Stone address the Defense Department's "Don't Ask, Don't Tell" policy that
operates today in our "war against terrorism." Such "anti-homosexual" measures
are directed as much against sex acts as speech acts, of course, and applied as
much in peacetime as in wartime; for those reasons alone, Stone might be
forgiven any oversight. It is clear, however, that the definitive work on
free-speech violations inflicted by America's Kulturkamp against its
loyal LesBiGay citizens has yet to be written.
In the acknowledgements to Perilous Times, Stone recognizes two of his
most significant mentors: former University of Chicago law professor Harry
Kalven Jr., a celebrated free speech scholar, and Justice William J. Brennan
Jr., one of the Supreme Court's greatest luminaries in First Amendment law.
Stone puts it humbly: "I hope this book would have pleased them."
Given the monumental achievement of this work and its likely influence on future
First Amendment thought, Stone can be confident that they would have been very
pleased, indeed. For I suspect that this will be a book with a long and worthy
history.
David M. Skover is a professor of constitutional law at Seattle University. He is the co-author (with Ronald Collins) of The Trials of Lenny Bruce (2002), The Death of Discourse (2nd edition, 2005), and a forthcoming book, entitled Dissent.