Stone's Perilous Times Reviewed

Herbert Mitgang

October 24, 2004

Book Review:
Perilous Times Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism by Geoffrey R. Stone W.W. Norton: 730 pp., $35

So rich in material is "Perilous Times," a chronicle of the tribulations of the 1st Amendment in wartime, that this scholarly yet highly readable book amounts to an anecdotal history of the United States itself, from the Founding Fathers to the present. Its author, Geoffrey R. Stone, a law professor at the University of Chicago and one of our foremost scholars on constitutional law, has written, with knowing passion, a cautionary tale for our times. Stone focuses on six wartime "episodes" in which the federal government sought to punish individuals for criticizing official policy:

When the new nation was on the verge of war with France, Congress enacted the Sedition Act of 1798, making it a crime to publish or utter any disloyal statement against the government of the United States, the Congress or the president.

During the Civil War, President Lincoln suspended the writ of habeas corpus. A number of Copperheads -- Northern Democrats opposed to the war and to emancipation -- were convicted by military tribunals, and several newspapers were shut down temporarily, as part of the crackdown against anti-Union agitators. Lincoln offered a brilliant justification: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?"

During World War I, some 2,000 people, including Eugene V. Debs, who in 1912 had received a million votes as the Socialist Party's presidential candidate, were prosecuted under the Espionage Act of 1917 and the Sedition Act of 1918 for opposing the war and the draft.

During World War II, 120,000 individuals of Japanese descent were placed in internment camps, without hearings. Ironically, at the same time, thousands of Nisei (second-generation Japanese Americans) were serving in the 442nd Regimental Combat Team, the most decorated unit in the U.S. Army.

In the Cold War with the Soviet Union, the federal government instituted loyalty oaths in its own agencies; some universities and businesses followed suit. FBI Director J. Edgar Hoover kept private files on presidents as well as prominent antiwar demonstrators, not to mention such subversive organizations as the League of Women Voters. The House Un-American Activities Committee, whose first chairman, Martin Dies, had called Eleanor Roosevelt "one of the most valuable assets ... the Communist Party possess[es]," attacked Hollywood as a hotbed of communism, ruining any number of careers. Sen. Joseph McCarthy, chairman of the Senate Permanent Subcommittee on Investigations, blackened the reputations of many government officials simply by calling them to testify. Stone considers this postwar period "perhaps the most repressive" in our history.

During the Vietnam War, the FBI engaged in domestic espionage to "expose, disrupt, and otherwise neutralize" dissident political activities. The government also sought (unsuccessfully) to enjoin the New York Times and the Washington Post from publishing the Pentagon Papers, a secret government study on the reasoning behind and conduct of the war.

"In each of these episodes," Stone writes, "the nation faced extraordinary pressures -- and temptations -- to suppress dissent. In some of these eras, national leaders cynically exploited public fears for partisan political gain; in some, they fomented public hysteria in an effort to unite the nation in common cause; and in others, they simply caved in to public demands for the repression of 'disloyal' individuals. Although each of these episodes presented a unique challenge, in each the United States went too far in sacrificing civil liberties -- particularly the freedom of speech."

There are dozens of villains and heroes in the case histories cited here. The heroes are the Supreme Court justices whose opinions, often in dissents, went against flag-waving martial sentiments and upheld the right of free speech. Here are two eloquent examples, the first from Oliver Wendell Holmes, who declared, in a World War I case involving publication of two leaflets exhorting American workers to fight the capitalist system, "[N]obody can suppose that the surreptitious publishing of a silly leaflet by an unknown man ... would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.... I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States.... [T]he ultimate good desired is better reached by free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.... I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so immediately threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

And this from Louis Brandeis, in a 1927 case on a state law making it a crime to advocate the overthrow of government: "Those who won our independence 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."

Pondering the significance for today of past assaults on the 1st Amendment, one cannot help but imagine the many dissident voices that would have been stilled had not the first Sedition Act expired in 1801, on the final day of John Adams' presidency. Mark Twain, an opponent of the Spanish-American War, would surely have tangled with the law for denouncing President McKinley and American imperialism. "Fahrenheit 9/11" would never have been seen here, and Michael Moore, its feisty creator, would have been jailed.

"A critical function of free speech in wartime is to help the nation make wise decisions about how to conduct the war," Stone concludes. "If free speech is essential to self-governance in ordinary times, it is even more critical when citizens must decide whether to let the Southern states secede, withdraw our troops from Vietnam, or launch a regime change in Iraq." *

*From Perilous Times

In the entire history of the United States, the national government has never attempted to punish opposition to government policies except in time of war. Of course, the government routinely regulates speech in many ways -- it restricts obscenity, prohibits false advertising, limits the size of billboards, and regulates campaign contributions. But it prohibits political dissent only in wartime. In peacetime, in times of relative tranquillity, which (by my count) make up roughly 80 percent of our history, the United States does not punish individuals for challenging government policies. This is a little-noted, but critical, fact. It reveals a great deal about our constitutional traditions and makes clear that, in order to understand free speech, we must understand free speech in wartime.

Herbert Mitgang, a fellow of the Society of American Historians, is the author of Dangerous Dossiers: Exposing the Secret War Against America's Greatest Authors and most recently Newsmen in Khaki: Tales of a World War II Soldier Correspondent.