Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism

By Geoffrey R. Stone. Norton. 730 pp. $35

On July 4, 1951, at the height of Cold War tensions, a reporter asked 112 people in a park in Madison, Wis.consin, to sign a petition containing nothing more than quotations from the Declaration of Independence and the Bill of Rights. All but one refused. ["Many Found Wary of July 4 Petition," New York Times, July 29, 1951, p. 43. Also reported elsewhere: Time, Washington Post, Nation.{scheck}yes, OK] Bitter ironies like this abound in Perilous Times, Geoffrey R. Stone's masterful history of free speech in wartime America. With clarity, moderation and some 2,000 footnotes, Stone explains how Americans could come to fear their own founding documents. We have long needed this book, though perhaps never as badly as we do today.

It would be comforting to agree with Justice Hugo Black's straightforward assertion in 1960 that the Founders really meant what they said when their Constitution banned all restrictions on speech. " 'No law' means no law," harrumphed Black. But in a world of secessionists, anarchists, Nazi sympathizers and Lackawanna terror cells, that confidence has not always been shared. "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" asked Abraham Lincoln at a moment when the republic really was in genuine peril. But when political crises are exploited for partisan gain and comedy-show writers are told to "watch what they say," the deferential approach embodied in the ancient Roman maxim inter arma silent leges ("in time of war, the laws are silent") seems sure to throw the constitutional baby out with the seditious bathwater.

Stone, a former dean of the University of Chicago's law school, gambles on the proposition that even after Sept. 11 -- when, we are told, everything changed -- history can still offer us guidance. And what a sorry lesson it teaches. Perilous Times affirms that "the Constitution has never greatly bothered any wartime President," as Francis Biddle, attorney general during World War II, noted. In the 1790s, John Adams and the Federalists used the specter of revolutionary France to attempt to create a one-party state. Lincoln suspended the writ of habeas corpus eight times and shut down some 300 opposition newspapers during the Civil War, while Union officers seized as many as 38,000 civilians and convened a special military tribunal for one of them, Clement Vallandigham, a sitting congressman guilty of nothing more than bluster.

History repeats itself here as tragedy: Woodrow Wilson claimed to target only those "who have poured the poison of disloyalty into the very arteries of our national life," but wartime legislation caught in its net the likes of suffragist Alice Paul, civil rights activist A. Philip Randolph and yet another blustery congressman, Milwaukee's Victor Berger. History also repeats itself as farce: 13.5 million Americans signed loyalty oaths as a condition of employment during the 1950s, and the state of New York even required the sworn renunciation of communism by applicants for fishing licenses. Red herring, indeed.

Many of these efforts were colored by prejudice and suspicion of society's outsiders: In 1798, Federalists accused their enemies of imported French sedition (plus ca change) and experimented with immigration restrictions; during World War I, immigration laws tightened, and Oklahoma even banned speaking German on the telephone. Cold War crusaders insidiously tied communism to Jews and gays. Perhaps the greatest injustice, as it emerges from Stone's history, is not that civil liberties were violated, but that it was all done so recklessly. "A Jap's a Jap," muttered Lt. Gen. John DeWitt as the ink dried on the evacuation orders in 1942, but when 120,000 persons of Japanese ancestry asked the Supreme Court why, DeWitt spoke disingenuously of "military necessity."

Stone provides a Profiles in Courage for the Sept. 11 generation. But he rejects a simple story of heroes and villains, perhaps because the ragtag assembly of wartime victims in Perilous Times includes some truly unsavory characters: doctrinaire Stalinists, American Nazis, and Northern Copperheads who opposed Lincoln not because war was unhealthy for children and other living things but because they resented the "Negro mania" of the Great Emancipator. Crusaders like Emma Goldman, Roger Baldwin and Fred Korematsu get their due, but Stone reserves his deepest respect for history's unsung heroes: second-tier Justice Department officials in World War I who reined in the Bureau of Investigation, and War department attorneys in World War II who questioned Japanese internment. Stone cherishes men and women with faith in the Constitution; with faith that the cure for bad speech is more speech; with faith, as Hugo Black noted in 1951, "that free speech will preserve, not destroy, the nation."

Does America's current predicament warrant such faith? No, and yes. Perilous Times diagnoses our national compulsive disorder of hysterical excess followed by regret, amends and congratulatory back-patting. For Chief Justice William Rehnquist, who wrote a book on the same topic in 1998, this cycle of compulsion is the best we can hope for. Some rights, he argues, are necessarily suspended in wartime, but no matter -- they will be restored later. Cold comfort for a conscientious objector in a Navy brig for the duration, but Rehnquist's approach is particularly unable to protect the Constitution during an undeclared war on terrorism that explicitly has no end. The combination of ceaseless crisis with blanket secrecy and no avenues for appeal makes our current situation so constitutionally dire. The bright sun of the Bill of Rights will probably protect even the loopiest wartime blogger, but can it shine into shadowy immigration-hearing rooms? If excess follows excess without reconsideration, will terrorism mean never having to say you're sorry?

No, says the persistently optimistic Stone. "Over time we have made progress." The 20th century's struggles for civil liberties taught us why protecting the speech we hate defends our own rights. Take comfort, he tells us, in what we have not done since Sept. 11: There have been no mass internments of Arab-Americans; Attorney General John Ashcroft's Terrorism Information and Prevention System (TIPS) and its pizza-delivery spies were laughed off the legislative agenda; both left and right dismissed the creepy Total Information Awareness network; the Supreme Court stood up for due process rights for Guantanamo detainees. And, if America listens to its librarians (the profession most thoroughly radicalized by the war on terror), it will bury the USA PATRIOT Act when it expires on Dec. 31 of next year.

Perilous Times persuasively argues that real patriots don't need acts. Stone's scholarship found "not a single instance of a decision in which the Supreme Court has overprotected wartime dissent in a way that caused any demonstrable harm to the national security." Wholesale infringements of free speech in wartime demonstrate not strength, but weakness. "America is not made of the stuff that has to be coddled along with tales of winning to make her fight," insisted Rep. Thomas Schall of Minnesota during debate over the World War I Espionage Act. It would be enough, he argued, to "tell her the truth." And truth, these days, is in awfully short supply. *

Christopher Capozzola teaches American history at the Massachusetts Institute of Technology. He is writing a book on citizenship and civil liberties during World War I.