In Perilous Times
By Geoffrey R. Stone

The Nation, December 6, 2004

Ask Americans to enumerate their civil liberties and they
instinctively turn to freedom of speech and the press. Many assume
that these freedoms have been enjoyed more or less continuously since
1791, when the Bill of Rights was ratified. In fact, for much of our
history numerous legal and extralegal obstacles have confronted
dissenters hoping to publicize their views, hold meetings, picket and
distribute literature. Consciousness of the importance of free speech
developed gradually and unevenly. In Perilous Times, Geoffrey R.
Stone offers a compelling account of a crucial part--but only a
part--of this checkered history.

Stone's focus is free speech in wartime, and it is not a happy story.
Time and again, war has led to serious restrictions on civil
liberties. The book examines six historical moments during which the
government has tried to punish individuals for their beliefs--the
"quasi-war" with France of the late 1790s; the Civil War; World War
I; World War II; the cold war; and Vietnam. For each episode, Stone
sketches the cast of characters involved in free-speech cases and
provides detailed examination of debates over the proper limits of
civil liberties in wartime. A professor at the University of Chicago
Law School, Stone makes his sympathies clear at the outset: "dissent
in wartime can be the highest form of patriotism." Governments,
unfortunately, rarely see it that way.

Each of Stone's episodes bears lessons for the present. He begins in
1798, when the Administration of John Adams, faced with the threat of
war with France and a growing Jeffersonian opposition at home, moved
to silence political dissent. The Alien Act allowed the President to
deport foreigners he deemed dangerous. The Sedition Act essentially
made it illegal to criticize the government. Most of the seventeen
people indicted under its provisions were Jeffersonian editors,
including Matthew Lyon, a Vermont Congressman who published the
Scourge of Aristocracy and Repository of Important Political Truths.
Lyon received a $1,000 fine and a four-month jail sentence.

Unlike the recent USA Patriot Act, the Sedition Act was actually read
and debated in Congress. Federalists, drawing on an old tradition of
English law that defined "prior restraint" as the greatest threat to
a free press, insisted that since the act eschewed pre-publication
censorship and allowed truth as a defense, it did not violate the
First Amendment. Jeffersonians insisted that for the government to
punish the expression of ideas endangered democracy. Jefferson's
election in 1800 put a stop for more than a century to federal
legislation against political dissent.

Stone then jumps to the Civil War, offering a careful examination of
President Lincoln's arguments for suspending the writ of habeas
corpus and allowing military tribunals to try civilians outside war
zones. He notes the damage to civil liberties but makes clear that
Lincoln took pains to mitigate the excessive actions of subordinates.
Not all of his successors were so scrupulous.

During World War I Woodrow Wilson, as assured of the righteousness of
his crusade to remake the world as any member of the Bush
Administration, insisted that people he deemed disloyal had
"sacrificed their right to civil liberties." Stone points out that
when Congress passed the Espionage Act of 1917, the first national
law to punish political speech since 1798, it rejected some of
Wilson's extreme proposals, including a provision authorizing the
government to censor the press and punish "disaffection." But by
1918, when Congress passed the Sedition Act, such caution had
evaporated. That law forbade writing or making any statement that
brought the government into "disrepute."

The arrest of numerous Americans for speeches and publications
critical of the war effort forced the Supreme Court for the first
time to deal with free-speech issues. In its initial decisions, Stone
relates, it dealt the concept of civil liberties a devastating blow.
In 1919 it upheld the convictions of Charles Schenck, who distributed
leaflets urging political action against the draft, and of Eugene
Debs for a speech condemning American involvement in the war. Justice
Oliver Wendell Holmes declared that the First Amendment did not
prevent Congress from prohibiting speech that presented a "clear and
present danger" of inspiring illegal actions.

During World War II, the Administration of Franklin Roosevelt
actively promoted freedom of expression as one of the key differences
between American liberty and Nazi tyranny. Freedom of speech took its
place as one of the Four Freedoms Roosevelt promised to extend to the
entire world after the war. The Supreme Court, Stone writes, "played
a cautiously speech-protective role," overturning, for example, the
conviction of Jehovah's Witnesses who refused to salute the American
flag. (Of course, it also upheld the internment of more than 100,000
Japanese-Americans, the greatest violation of civil liberties in
American history other than slavery.)

The progress of free expression proved tentative and partial. The
postwar years witnessed a "steady erosion" of support for civil
liberties. Stone strongly criticizes President Harry Truman for
establishing a series of tribunals at which government employees were
asked to respond to ill-defined charges of disloyalty (which often
included union activism and support for civil rights) by unnamed
informants. Truman hoped the program would insulate him from
Republican criticism. But, writes Stone, his actions "laid the
foundation" for the ensuing "anti-Communist hysteria."

At first, in the words of Justice William O. Douglas, the Supreme
Court ran "with the hounds," affirming the conviction of Eugene
Dennis and other Communist leaders for the vaguely defined charge of
"conspiring to advocate the overthrow of government." Stone's
analysis of the Dennis case underscores the dangers that exist when
judges succumb to the temper of the times or defer unquestioningly to
the President's judgment as to whether a threat to national security
actually exists. Not until 1957, after the Senate had censured Joe
McCarthy, did the Supreme Court put an end to the prosecution of
Communists, and it soon went on to eviscerate federal and state
loyalty programs.

During the Vietnam War, the last of Stone's episodes, the Court
demonstrated how far it had traveled from World War I. In 1968 it did
uphold the conviction of a war protester for burning his draft card,
rejecting the claim that this action should be considered symbolic
speech. But in the Pentagon Papers case it allowed the publication of
classified government documents whose release was certain to affect
the war effort--quite a change from the World War I jailing of
dissenters who circulated innocuous antiwar leaflets. Government
efforts against dissent hardly ceased, but apart from a few
unsuccessful conspiracy indictments, they now took the form of FBI
disruption of antiwar and civil rights groups rather than the
prosecution of dissenters.

Overall, Perilous Times tells a story every American should know, and
tells it well. It provides an almost encyclopedic account of the
evolution of legal doctrine concerning dissent, and perhaps the best
available analysis of the legal questions relating to free speech in
wartime. Why, then, did I experience a growing feeling of unease as I
read through the volume? The reason lies in Stone's myopic definition
both of free speech and the threats to it.

Perilous Times reflects the strengths and limitations of a certain
kind of law school history--a history that revolves around federal
laws and constitutional cases, and whose heroes are jurists and
lawyers. Stone's understanding of free speech flows from the First
Amendment, which defends our civil liberties against violations by
Congress (subsequently interpreted by the courts to include all
agencies of government). The amendment does not prohibit the
suppression of free speech by private individuals and institutions,
and thus Stone devotes little attention to the way nongovernmental
actors have affected freedom of expression. Employers can fire people
because of their political beliefs, and consolidated media can decide
what views do not deserve to be printed, without violating the First

This focus on repression by government explains why Stone chose to
study free speech only during wars. In peacetime, which, according
to his calculation, represents 80 percent of our history, "the
United States does not punish individuals for challenging
government policies." Stone's account leaves the impression that
respect for freedom of expression is the "default" position of
American society, upset from time to time by war hysteria. History
does not bear this out.

A broader view of the subject would include the numerous violations
that have occurred in peacetime, sometimes by the federal, state and
local governments, often by private parties. Stone, for example,
states that between 1800 and the Civil War, the federal government
"did not attempt to silence criticism of national leaders or
policies"--ignoring the fact that state-level prosecutions for
seditious libel continued long after the national Sedition Act
expired in 1801. Even on its own terms, the statement is factually
incorrect. In the 1830s the House of Representatives' "gag rule"
prohibited the consideration of antislavery petitions, and the
Administration of Andrew Jackson allowed Southern mobs to remove
abolitionist materials from the mails. Indeed, Stone's formulation
ignores the centrality of the slavery controversy to the growth of
civil liberties. In response to the disruption of their meetings and
the killing of an abolitionist editor, critics of slavery elevated
freedom of expression to a central place in the definition of
American liberty. Even though their campaign occurred in peacetime,
it forms an essential part of the history of free speech.

Similarly, in the twentieth century grave threats to freedom of
speech have come from local governments and private groups, and
"normal" times have seen their share of repression. While Stone
mentions the depredations of organizations like the American
Protective League, which rounded up suspected draft dodgers during
World War I, and the widespread blacklisting by employers during the
McCarthy period, he devotes little attention to their actions since
they did not raise a constitutional question. He deals with Japanese
internment but says nothing about other ways racism has affected the
suppression of free speech, including the lynching of blacks who
spoke out against the South's racial order, and numerous state and
local efforts to suppress the NAACP.

Stone highlights the bravery of federal judges Charles Amidon, George
Bourquin and Learned Hand, who challenged the hysteria of World War I
by dismissing indictments of war critics. But equally heroic battlers
for free speech go unmentioned--anarchists who combated state
"criminal syndicalism" laws; the Industrial Workers of the World
(IWW), which campaigned against local ordinances that limited public
speaking; birth-control advocates who fought for the right to
distribute information about reproduction and contraception in the
face of national and local obscenity laws; immigrants who resisted
state laws that prohibited teaching in a language other than English.

Most of these struggles never got to the Supreme Court, so they do
not form part of the history of constitutional law. But they helped
to shape a civil liberties consciousness that eventually influenced
Congressional policies and Court decisions. For example, the
exposure during the 1930s of the violent methods used by employers
to combat unionization played a crucial role in making the federal
government for the first time a protector of freedom of expression.
With its restrictions on employers' antiunion activities, the Wagner
Act of 1935 was, among other things, a landmark in the development
of free speech.

Many readers will be disappointed that Stone devotes only a handful
of pages to the free-speech implications of the "war on terrorism."
But he makes it clear that the lessons of history are not
encouraging. "The United States," he writes, "has a long and
unfortunate history of overreacting to the dangers of wartime."
American political leaders have frequently blurred the line between
treason and dissent, raised the specter of internal subversion and
inflamed public fears for partisan purposes.

The history of free expression--in peacetime as well as
war--underscores the fragility of civil liberties in the face of
assertive patriotism. Not long after the attacks of September 11, the
journalist Jay Winik argued in the Wall Street Journal that since
restraints on civil liberties in earlier wars had no lasting effect,
we should not be concerned about parallel actions today--"when our
nation is again secure, so too will be our principles." Stone's
account offers a powerful rebuke to such complacency. The episodes he
relates did indeed have enduring consequences. World War I repression
destroyed the IWW, the Socialist Party and much of the mainstream
labor movement. McCarthyism dealt a severe blow to all sorts of
movements for social change and severely limited the acceptable
boundaries of political criticism among intellectuals.

Given that the "craving for security at any price" has more than once
led to public acquiescence in restraints on civil liberties, Stone
insists on the necessity of having in government people with a
commitment to civil liberties. No such person exists in the Bush