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Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.



PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT Sedition Act: see Alien and Sedition Acts.  OF 1798 TO THE WAR ON TERRORISM Terrorist acts and the threat of Terrorism have occupied the various law enforcement agencies in the U.S. government for many years. The Anti-Terrorism and Effective Death Penalty Act of 1996, as amended by the usa patriot act . By Geoffrey R. Stone Geoffrey R. Stone is an American law professor. He is currently the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago Law School. A member of the law faculty since 1973, Mr.  (1) New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of
. W.W. Norton and Company. 2004. Pp. 730 + xx. $ 35.00.

OVERVIEW

Geoffrey R. Stone has written a long and important book on free speech in wartime. The book proceeds chronologically from the "half war" with France and the Sedition Act of 1798, through the Civil War, World War I, World War II, the Cold "War," the Vietnam War Vietnam War, conflict in Southeast Asia, primarily fought in South Vietnam between government forces aided by the United States and guerrilla forces aided by North Vietnam. , and a very brief discussion of the "War" on Terror. A few wars get short shrift short shrift
n.
1. Summary, careless treatment; scant attention: These annoying memos will get short shrift from the boss.

2. Quick work.

3.
a.
, such as the War of 1812 and the Mexican War. But Professor Stone discusses the free speech issues in the wars he covers in admirable detail.

Stone not only discusses historic episodes. He also discusses constitutional questions the episodes raise, both in terms of past and present legal understandings. By looking at the past in light of free speech and other legal doctrines Stone often illuminates both the past and the law. For example, Stone discusses the case of Clement Vallandigham Clement Laird Vallandigham (velan´digham, -gam) (July 29 1820 – June 17 1871) was an Ohio unionist of the Copperhead faction of anti-war, pro-Confederate Democrats during the American Civil War.

He was born in New Lisbon, Ohio (now Lisbon, Ohio).
 who was arrested for making an antiwar an·ti·war  
adj.
Opposed to war or to a particular war: antiwar protests; an antiwar candidate. 
 speech in Ohio. Lincoln defended the arrest by asking, "must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator ag·i·ta·tor  
n.
1. One who agitates, especially one who engages in political agitation.

2. An apparatus that shakes or stirs, as in a washing machine.

Noun 1.
 who induces him to desert?" (p. 111). Stone notes that Lincoln's claim is dubious in light of current free speech doctrine: ordinarily people may not be reduced to reading or hearing material suitable for the simple-minded (pp. 110-11). Similarly, Stone looks at prosecutions for attempting to cause insubordination in·sub·or·di·nate  
adj.
Not submissive to authority: has a history of insubordinate behavior.



in
 or refusal to serve in the armed forces in light of the general law of attempt as it existed at the time. He also looks at scholarly criticism written at the time (e.g., pp. 161, 163, 175, 179).

Occasionally, the book moves beyond war and free speech to related issues. For example, it covers the incarceration Confinement in a jail or prison; imprisonment.

Police officers and other law enforcement officers are authorized by federal, state, and local lawmakers to arrest and confine persons suspected of crimes. The judicial system is authorized to confine persons convicted of crimes.
 of American citizens and non-citizens of Japanese descent during World War II, and the substantial deprivations of fair process in the case of the thousands of people forced out of federal employment in the government's Cold War loyalty program. Stone looks not only at statutes and prosecutions, but also at wider phenomena, such as criticism in the Illinois legislature of the University of Chicago for allowing a student Communist group to exist. Robert Hutchins Robert Maynard Hutchins (January 17, 1899, Brooklyn, New York – May 17, 1977, Santa Barbara, California) was an educational philosopher, a president of the University of Chicago (1929–1945) and its chancellor (1945–1951). , the president of the University, is one of a number of leaders in the struggle for freedom of discussion whose brief biographies enrich the book.

Some readers will find some of the stories familiar. I learned much from Professor Stone's discussion of World Wars I and II, the Cold War, and the Vietnam War. In any case, Professor Stone's object is not simply to write a monograph for law professors and historians on hitherto obscure free speech episodes. He seeks a far wider audience. He hopes the larger story he tells will contribute to the defense of liberty.
   Because the protection of liberty ultimately "lies in the hearts
   of men and women," citizens must understand and internalize
   the value of civil liberties and the need--indeed, the duty--to
   tolerate and even to consider dissenting views. They must
   appreciate why civil liberties matter and why they have a
   responsibility to protect them. They must understand that even
   well-meaning individuals are tempted to do things under the
   influence of mob mentality that "they would be entirely
   ashamed to do on their own." (p. 536).


His basic point is surely right. In the long run, the Court reflects dominant political views. At their best, courts can cabin bigotry (3) and check hysteria (4) in the short run. Whether they should do so, and if so when, is the subject of a raging political debate today. Still, if dominant political views are and remain hostile to strong constitutional protection for dissent or other claims of liberty, those claims will not fare well in the courts.

On that score, reading Perilous Times can be discouraging at times--even from a short run perspective. Congress passed, the President signed, and the courts enthusiastically enforced the Sedition Act of 1798. In effect, the Sedition Act made "false" opinions about President Adams or the Federalist fed·er·al·ist  
n.
1. An advocate of federalism.

2. Federalist A member or supporter of the Federalist Party.

adj.
1. Of or relating to federalism or its advocates.

2.
 Congress a crime. At the same time, the Sedition Act left Vice President Thomas Jefferson (Adams' expected opponent in the upcoming presidential election) without any legal protection against the slings and arrows of outraged Federalists. During the Civil War, Union General Ambrose Burnside Ambrose Everett Burnside (May 23, 1824 – September 13, 1881) was an American railroad executive, inventor, industrialist, and politician from Rhode Island, serving as governor and a U.S. Senator.  arrested Democrat Clement Vallandigham for making an anti-war speech and tried and convicted him before a military commission. This act was ratified by President Lincoln. During World War I, dissenters dissenters: see nonconformists.  were given long jail sentences for political opposition to the war and the draft, and the courts generally upheld the convictions. At least, as Stone points out, the victims of the Sedition Act could only get two years in jail. In World War I, sentences between ten and twenty years TWENTY YEARS. The lapse of twenty years raises a presumption of certain facts, and after such a time, the party against whom the presumption has been raised, will be required to prove a negative to establish his rights.
     2.
 were typical. World War II saw the incarceration of the Japanese for the duration of the war.

Professor Stone chronicles First Amendment casualties in the Cold War in considerable detail. At the loyalty hearings, the accused employee had a right to counsel, but not to confront his accuser or even to know the accuser's identity. At hearings, people were asked how many times they had voted for Henry Wallace Henry Wallace may refer to:
  • Henry A. Wallace (1888–1965), U.S. Vice President
  • Henry Cantwell Wallace (1866–1924), U.S. Secretary of Agriculture, father of Henry A. Wallace
  • Harry Brookings Wallace, former Chancellor of Washington University in St.
. Wallace was the Democratic vice presidential candidate in 1940 and the Progressive Party candidate in 1948; in 1948, the American Communist Party Communist party, in China
Communist party, in China, ruling party of the world's most populous nation since 1949 and most important Communist party in the world since the disintegration of the USSR in 1991.
 endorsed Wallace. People were also asked if they had read novels by Howard Fast Howard Melvin Fast (November 11, 1914 New York City - March 12, 2003 Old Greenwich, Connecticut) was a Jewish American novelist and television writer, who wrote also under the pen names E. V. Cunningham and Walter Ericson.  or listened to records by Paul Robeson and what their feelings were about racial equality (p. 346).

Only during the Vietnam War did the Court substantially protect anti-war dissent. In his conclusion Professor Stone asks, "Can we do better?" In light of this rather dismal record, it is a pertinent question.

Still, as Stone makes clear, the picture is more complex than the preceding paragraph suggests. Thomas Jefferson won the election of 1800, the Sedition Act expired, Jefferson pardoned the violators, and Congress eventually repaid the fines. During the Civil War, some Republicans as well as abolitionists joined Democrats in protesting suppression of anti-war speech. The protest helped to contain repression. (The Civil War Congress also passed legislation that attempted to limit military arrests and military trials of civilians in non-combat areas, but the Lincoln administration ignored the law. (5)) Stone shows that the Congress debated the World War I Acts used to punish speech and made serious attempts to limit their scope. But the courts, swept away by the "riptide of war fever War Fever is a collection of short stories by J. G. Ballard, first published in 1990 by Collins. It includes:
  • War Fever
  • The Secret History of World War 3
  • Dream Cargoes
  • The Object of the Attack
  • Love in a Colder Climate
" (p. 179), generally ignored the limited readings they could reasonably have given to the acts (pp. 146-180). While President Roosevelt asked his Attorneys General for Smith Act prosecutions on the eve On the Eve (Накануне in Russian) is the third novel by famous Russian writer Ivan Turgenev, best known for his short stories and the novel Fathers and Sons.  of World War II, his Attorneys General were unenthusiastic and only a few prosecutions emerged (pp. 252-55).

According to Stone, "it is often repeated as a form of conventional wisdom that the Supreme Court will not decide a case against the government on an issue of military security during a period of national emergency" (p. 549). Supporters of the claim cite decisions like the ones upholding the incarceration of the Japanese in Korematsu (6) and the conviction of officials of the Communist Party in Dennis. (7) Stone insists that this "does not give the Court its due" because there "are many counter examples" (pp. 549-50). He lists a number, including cases that upheld First Amendment rights of American fascists and Communists in a series of criminal prosecutions and denaturalization proceedings during World War II and the Barnette decision protecting the right of pacifist Jehovah Witness children not to salute the flag in 1943 (p. 550).

Though it came out too late for inclusion in his book, the Supreme Court decision in Hamdi v. Rumsfeld For the case involving Guantanamo military commissions, see .

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S.
 (8) is an additional example. There the Court held that the president may not unilaterally imprison im·pris·on  
tr.v. im·pris·oned, im·pris·on·ing, im·pris·ons
To put in or as if in prison; confine.



[Middle English emprisonen, from Old French emprisoner : en-
 American citizens as "enemy combatants" and deny them any access to counsel or to a hearing to determine guilt. The majority provided significant protection, though it fell short of the robust, historic protections Justice Scalia would have accorded--absent congressional suspension of the writ of habeas corpus Noun 1. writ of habeas corpus - a writ ordering a prisoner to be brought before a judge
habeas corpus

judicial writ, writ - (law) a legal document issued by a court or judicial officer
. (9) Still, it substantially limited the President's claim to unilateral power.

LESSONS FROM THE PAST?

For those concerned with maintenance of free speech and civil liberty in periods of crisis, Perilous Times provides vicarious vicarious /vi·car·i·ous/ (vi-kar´e-us)
1. acting in the place of another or of something else.

2. occurring at an abnormal site.


vi·car·i·ous
adj.
1.
 experience from history and subjects that experience to legal analysis. There are lessons one might draw from this vicarious experience. Some are depressingly current.

1. Hysteria distorts the law and the Constitution and undermines free speech.

The first lesson is one emphasized by Justice Robert H. Jackson For the photographer, see .

Robert Houghwout Jackson (February 13, 1892–October 9, 1954) was United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954).
: while power to wage war is essential, it is also especially dangerous to liberty. As Jackson wrote in 1948, the war power is "the most dangerous one to free government in the whole catalogue of powers." (10) He explained that this was because it
   usually is invoked in haste and excitement when calm legislative
   consideration of constitutional limitation is difficult. It is
   executed in a time of patriotic fervor that makes moderation
   unpopular. And, worst of all, it is interpreted by judges under
   the influence of the same passions and pressures. Always ...
   the Government urges hasty decision to forestall some emergency
   ... and pleads that paralysis will result if its claims to
   power are denied.... (11)


Perilous Times documents recurring triumphs of hysteria. For example, in passing the Sedition Act, Federalists saw (or said they saw) a conspiracy to ruin the government by false statements (pp. 36-38). During World War I, courts upheld long prison sentences for express and even implied criticism of the war and draft. Even a movie about the American Revolution landed its producer in jail because it portrayed atrocities by British soldiers. (In World War I, the British were our allies). When representatives of the National Civil Liberties Bureau went to officials in the Wilson administration to plead for restoration of mailing privileges for The Masses and other journals, the administration responded by denying mailing privileges to the National Civil Liberties Bureau itself. The publications the administration banned included the Bureau's pamphlet on free speech (p. 183). With implicit support from the government, "private" organizations engaged in break-ins, bugging offices, searches of bank and medical records aimed at Americans of German descent. Vigilantes ransacked homes, tarred and feathered, whipped a minister before he could speak to an anti-war rally, and also murdered people (p. 157).

Another example of hysteria was the incarceration of the Japanese. Although no acts of espionage or sabotage were documented and military leaders said the danger of a Japanese invasion was quite remote, advocates from General John DeWitt to columnist Walter Lippmann called for incarcerating the Japanese. They did so although the FBI had already rounded up those it considered dangerous and said it had the situation well in hand. Remarkably, Lippmann and DeWitt treated the absence of any acts of sabotage or espionage as proof of a disciplined conspiracy just waiting for the right moment to strike (pp. 292-94). Roosevelt followed the General's advice.

2. Meaningful democracy requires free speech, especially in wartime.

Stone's account lets us hear from Congressmen, Senators, lawyers, and others involved in these free speech controversies. One theme is the centrality of free speech for democracy. Here, for example, is Stone's account of Gilbert Roe, attorney for the Free Speech League, arguing before a congressional committee against suppression of dissent Suppression of dissent occurs when an individual or group which is more powerful than another tries to directly or indirectly censor, persecute or otherwise oppress the other party, rather than engage with and constructively respond to or accommodate the other party's arguments or  during World War I:
   Roe noted that "the people ... retain their right at the next
   election to return to Congress Senators and Representatives
   ... who are opposed to the continuation of the war."
   How, he asked the committee, is any voter "to form an intelligent
   opinion" on this question "unless there is the fullest discussion
   permitted of every phase of the war, its origin, its
   manner of prosecution, and its manner of termination? (p.
   150, ellipses in original).


3. The idea that the opposition is loyal (though misguided), a central tenant of democratic government, is often threatened in wartime.

Accepting the opposition as legitimate and loyal is crucial for healthy democracy. If one's opponents are not only misled, but disloyal enemies of the nation, then extreme measures to suppress them seem justified. Federalists saw political opposition as a dangerous Jeffersonian conspiracy to destroy the nation. Jeffersonian Republicans (correctly) insisted that their criticism was simply the democratic process at work. As Republican Albert Gallatin noted, the "dangerous 'conspiracy'" charged by the Federalists consisted of speeches and writings "expressing an opinion that certain measures of Government have been dictated by an unwise policy, or by improper motives, and that some of them were unconstitutional" (p. 38). Gallatin rejected the claim that Republican criticism of the Adams administration "is seditious se·di·tious  
adj.
1. Of, relating to, or having the nature of sedition.

2. Given to or guilty of engaging in or promoting sedition. See Synonyms at insubordinate.
, is an enemy, not of the Administration, but of the Constitution" (p. 38). Such a claim, Gallatin noted, is "subversive of the Constitution" (p. 38). This third lesson--the attack on the democratic concept of a loyal opposition--is inextricably in·ex·tri·ca·ble  
adj.
1.
a. So intricate or entangled as to make escape impossible: an inextricable maze; an inextricable web of deceit.

b.
 linked to a fourth.

4. Politicians use the crisis in an effort to entrench en·trench   also in·trench
v. en·trenched, en·trench·ing, en·trench·es

v.tr.
1. To provide with a trench, especially for the purpose of fortifying or defending.

2.
 themselves and destroy their political opponents.

Political leaders often exploit a crisis in an effort to eliminate the opposition and to entrench themselves. Since democracy requires a healthy opposition and the democratic rationale for free speech involves the importance of multiple perspectives, silencing the opposition or dissenters is a bad thing. For example, the Federalists attempted to use the undeclared war with France to destroy the Jeffersonian party and to entrench themselves in power (p. 34). During the Cold War, the chairman of the Republican National Committee announced that the "Democratic party policy ... bears a made-in-Moscow label" (p. 312) and Richard Nixon described the Democratic Party as the "party of communism" and described President Truman and Democratic presidential nominee Adlai Stevenson as "traitors" (p. 339).

5. The dangers of hysteria and political abuse provide cogent arguments for a strong version of the clear and present danger test.

Today, as during other times of crisis, we are tempted to relax speech protective tests such as that in Brandenburg v. Ohio Brandenburg v. Ohio, 395 U.S. 444 (1969), was a United States Supreme Court case based on the First Amendment to the U.S. Constitution.  (12) to one more like the test of the Dennis plurality. Stone asks if we can act against a 90% chance of a smaller evil by suppressing speech, why should we not be able to act against 1% chance of a far greater evil (p. 409). His answer is that a close temporal connection increases confidence that the prediction of serious harm has some validity (p. 409).
   It is difficult to predict future events. As a general rule, the
   farther out in the future the event, the less confident we can
   be of our predictions. Insisting on a close temporal connection
   between speech and harm increases our confidence that the
   prediction has some validity. Moreover, in a free society the
   suppression of speech should be a last, not a first, resort.
   Unless the feared harm is imminent, and there is no alternative
   to restricting speech, the government should use other
   methods to prevent the harm. The temptation to suppress dissident
   speech on the pretext or the honest, but mistaken, belief
   that it is dangerous is both natural and pervasive. Insisting
   on a close temporal connection and a high likelihood of serious
   harm assures us that the danger and not abhorrence of the
   ideas that is driving the government's action (p. 409).


Strong protection for speech does not, Stone emphasizes again and again, leave the government impotent. It simply requires that it target the crimes and harms rather than dissenting speech.

The other approach, of course, is some variation of the bad tendency test. As one court put it, speakers must be held responsible for the "natural and probable tendency and effect" of their words. By this view, attacking the wisdom or justice of the war would undermine the war effort by "undermining the spirit of loyalty" (p. 171). As one commentator at the time noted, the shrewd among those who wish to undermine the war effort could pose as attempting to influence public opinion to change the law. By that view, the harm in suppressing some democratic discussion was outweighed by the harm to the war effort from allowing such criticism (p. 219).

6. Laws and Constitutions Are Not Enough. It matters who we have in positions of power.

A government of laws, not of men, is a cherished ideal. But as Jerome Frank once wrote, it is also an impossible one. We need instead, he said, a government of the right sort of laws enforced by the right sort of people. (13)

Perilous Times highlights again and again the importance of the people chosen to enforce the laws. In spite of failures and shortcomings, civil liberty and free speech fared far better, he suggests, because of Attorneys General such as Gerald Ford's Edward Levi, and Franklin Roosevelt's Francis Biddle, Frank Murphy, and Robert Jackson. Stone also gives us brief and moving portraits of the legislators and lower court judges who swam against the current of repression during World War I, for example. Stone concludes that when national leaders did not whip up hysteria against dissent, free speech fared far better (pp. 533-34).

SOME ADDITIONAL PERSPECTIVES AND RESERVATIONS

There are more lessons one could draw from this fine and instructive book. Instead, I will express a few reservations.

To a considerable extent, Stone views free speech through the lens of wars and the First Amendment. This is one of the book's virtues. It highlights many important parts of the picture, but like all perspectives leaves others in comparative darkness. Stone notes that "the First Amendment restricts only the government.... If Columbia University, a private institution, fires a teacher for being a member of the Socialist Party, its action does not violate the First Amendment. If a mob tars and feathers a speaker..., it does not violate the Constitution" (p. 6). True enough. But some readers might draw the wrong conclusion.

It is a mistake to confuse the First Amendment with free speech. The issue is difficult and paradoxical. Still, the claim that Columbia University and the mob in the hypothetical are undermining free speech is important, legitimate, and often substantially correct--even though there is no federal judicial remedy for a private attack on free speech. (14) (There may be legal remedies for assault, breach of contract, etc.)

If private suppression is sufficiently pervasive and persuasive, the government does not need to suppress. Private censors will do the work for it. Furthermore, the United States has a rich tradition of recognizing that mob attacks on speakers are an attack on free speech and the constitutional rights of American citizens. The reaction to the killing of Elijah Lovejoy is one example. Lovejoy was defending his anti-slavery press from the latest in a series of mobs that had destroyed his press. (15) The Court's decision that Congress had no power under the Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1


Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens
 to punish private conspiracies motivated by the specific intent to silence opposition helped to hobble hobble

leather straps fastened around the pasterns of horses, mules and donkeys. Placed on all four legs and pulled together by a rope, it provides an effective means of casting the horse.
 efforts to combat the Ku Klux Klan Ku Klux Klan (k' klŭks klăn), designation mainly given to two distinct secret societies that played a part in American history, although other less important groups have also used . (16) The result contributed to enabling one of the longest and most successful suppressions of the rights of free speech, voting, and association in American history.

The caveat about ignoring "private" suppression as we evaluate free speech history relates to a second implication (and perhaps not an intended one) of the Stone book. It is that free speech has been safe most of the time, through most of our history. The real problems arise, Stone suggests, in wartime--though Stone has wisely expanded what counts as a "war." "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" (p. 5).

What this perspective overlooks is a long history beginning with suppression of anti-slavery speech in the Southern states (before the Civil War) and continuing as "private" and public suppression for many years afterwards. At least from the 1830s through the Civil War, the Southern states, in effect, made it a crime to criticize the institution of slavery. By 1860 in North Carolina North Carolina, state in the SE United States. It is bordered by the Atlantic Ocean (E), South Carolina and Georgia (S), Tennessee (W), and Virginia (N). Facts and Figures


Area, 52,586 sq mi (136,198 sq km). Pop.
, uttering ideas that would have the tendency to make slaves or free blacks discontent (as most indictments of slavery would) was a felony punishable by death for the first offense. It was a felony for years before that. While Lincoln and Douglas did not agree on much in their famous 1858 debates, they agreed that Republicans could not campaign in the South. (17) The Southern state laws were only the tip of the suppression iceberg. Mobs and vigilance committees enforced conformity.

Closely related to the issue of the pervasiveness of suppression is the "rebound theory." By that theory, we suppress in times of crisis, but we soon rebound. First I will set out the rebound theory, then Stone's limited support of it, and then my reservations about his limited support.

A recurring theme in disputes over free speech in times of crisis is the idea that we need not worry because the suppression is temporary and things will return to normal after the crisis ends. That claim was part of Abraham Lincoln's defense of the military arrest and trial of Democratic politician Clement Vallandigham for making an anti-war speech. "Nor am I able," Abraham Lincoln wrote,
   to appreciate the danger apprehended by [his critics]
   that the American people will, by means of military arrests
   during the Rebellion, lose the right of Public Discussion,
   the Liberty of Speech and the Press....
   throughout the indefinite peaceful future ... any more
   than I am able to believe that a man could contract so
   strong an appetite for emetics during temporary illness
   as to persist in feeding upon them during the remainder
   of his healthful life (p, 112).


Stone ultimately rejects the "don't worry, we rebound" approach. He notes that suppression of free speech in times of crisis is a dramatic assault on civil liberty, even though the commitment to free speech rebounds (p. 531). "To fight a war successfully, it is necessary for soldiers to risk their lives. But it is not necessarily necessary for others to surrender their freedoms. That necessity must be demonstrated, not merely presumed" (p. 531). The claim, according to Stone, is particularly misguided where freedom of speech is involved because of the democratic right to make decisions related to the war (p. 531).

Furthermore, Stone strongly rejects the idea that courts should simply defer to the president or congress in times of crisis. He sees the idea of "judges as protectors of freedom" as a distinctive American contribution. Instead of deferring, Stone suggests the courts should "consciously construct constitutional doctrines that will provide firm and unequivocal guidance for later periods of stress" (p. 548).

Still, in an admirable effort at objectivity, Stone notes that the "rebound" argument has something to be said for it--in the case of short wars.
   If rights, once lost, could not later be regained, then civil
   liberties would be in a permanent downward spiral. But that is
   not the case. In fact, after each of our six episodes, the nation's
   commitment to free speech rebounded, usually rather
   quickly, sometimes more robustly than before.... As long as
   wars are of reasonably limited duration, this is an important
   consideration in assessing the long-term dangers of suppressing
   dissent in wartime (pp. 530-31).


As Stone implicitly notes, the rationale is particularly dubious when applied to a "war" such as the "war" on terror which is likely to continue for many, many years. Beyond the ones Stone notes, there are additional problems with the "don't worry, we always rebound" claim. I have reservations even about Stone's limited concession as to its merit.

First, I am dubious about the idea of a self-contained short repression. The "temporary" suppression provides a precedent for the next crisis, as one can see comparing rationales in the Civil War and World War I. Lincoln's decision to ratify and defend the military trial of Vallandigham for making an anti-war speech seems to have shaped the thinking of Oliver Wendell Holmes in Schenck (18) and Debs. (19) Like Lincoln, Holmes embraced a "wartime is different" rationale for "temporary" suppression of speech. Like Lincoln, Holmes embraced a bad tendency rationale--the speech of a "wily agitator" must be suppressed because it can induce a "simple-minded soldier boy" to desert (p. 111). That was so, Lincoln asserted, even though Vallandigham did not "specifically and by direct language" advocate breaking the draft law.

Stone has a more sympathetic account of Lincoln's view. According to Stone, Lincoln's view gave free scope for criticism so long as criticism was coupled with an admonition Any formal verbal statement made during a trial by a judge to advise and caution the jury on their duty as jurors, on the admissibility or nonadmissibility of evidence, or on the purpose for which any evidence admitted may be considered by them.  to obey the law (pp. 112-13). He derives this principle from the fact that Lincoln (inaccurately) said that Vallandigham was not arrested simply for making an anti-war speech and from the fact that Lincoln (inaccurately) claimed that Vallandigham did not counsel against law violation (pp. 113-14).

If this makes Lincoln's justification for suppression of speech less objectionable, it leaves his approach to due process sadly inadequate. Lincoln justified the Vallandigham prosecution based on a crime with which Vallandigham was not charged and for which no evidence was offered at his military "trial." (20)

One long-term problem with the rebound theory then is that it provides a suppression rationale for the next crisis, and crises are not rare events in human history. (One can think of the American South as being in a permanent state of crisis over slavery through the Civil War and in a race crisis for many years thereafter.)

There is a second additional problem with the rebound defense for suppression. While Stone is right that free speech has often recovered rather quickly from temporary suppression (at least since the 1930s), it is also true that it often has not. That is so, at least, if you expand the focus to include "private" suppression and if you look at what was going on in the states. As noted above, anti-slavery speech was suppressed both by law and private violence in the South in the years before the Civil War. There were serious problems in the North as well. With the end of slavery, Southern laws punishing anti-slavery speech became moot. But in a deeper sense, the suppression of anti-slavery ideas lived on in the South--in the violent suppression of the Republican party and of political activity by blacks after Reconstruction. In one form or another, this repression of political rights continued until the 1960s. One hundred and thirty years is a long time before a bounce back. From this larger perspective, the 80-20 free speech repression ratio is less accurate.

Still, as Professor Stone notes, our record of admitting past mistakes (in calmer times) has been impressive.
   The Sedition Act of 1798 has been condemned in the "court
   of history," Lincoln's suspensions of habeas corpus were declared
   unconstitutional by the Supreme Court in Ex parte
   Milligan, the Court's own decisions upholding the World War
   I prosecutions of dissenters were all later effectively overruled,
   and the internment of Japanese Americans during
   World War II has been the subject of repeated government
   apologies and reparations. Likewise, the Court's decision in
   Dennis upholding convictions of the leaders of the Communist
   Party has been discredited, the loyalty programs and legislative
   investigations of that era have all been condemned,
   and the efforts of the U.S. government to "expose, disrupt
   and otherwise neutralize" anti-war activities during the Vietnam
   War have been denounced by Congress and the Department
   of Justice (p. 529).


On Christmas day, 1921 President Harding pardoned Eugene Debs and twenty-one others who had been convicted of speech crimes during World War I, and President Coolidge later released the remaining prisoners. Senator Borah, who had worked for pardons said, "I am delighted that a President of the United States has discovered the First Amendment to the Constitution and has had the courage to announce the discovery" (p. 232). This record of apology is impressive, but there are always doubters whose views of these events are likely to gain greater support in times of stress. (21)

We have, in comparatively recent years, done a fine job of recognizing past mistakes. The recognitions may reflect longterm learning. Or they may reflect the transitory triumph of a more civil libertarian tradition. Professor Stone is optimistic, and I hope he is right. In the end, as he notes, civil liberty will be secure only to the extent that the values it reflects are internalized and demanded by the American people. Books such as Perilous Times can help to advance that goal.

(1.) Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago.

(3.) E.g., Loving v. Virginia Loving v. Virginia, 388 U.S. 1 (1967), was a landmark civil rights case in which the United States Supreme Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby , 388 U.S. 1 (1967); Lawrence v. Texas The Supreme Court issued a landmark decision in Lawrence v. Texas, 539 U.S., 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), striking down state Sodomy laws as applied to gays and lesbians. , 539 U.S. 558 (2003).

(4.) E.g., Herndon v. Lowry, 301 U.S. 242 (1937); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Bond v. Floyd, 385 U.S. 116 (1966).

(5.) MICHAEL KENT CURTIS, FREE SPEECH, "THE PEOPLE'S DARLING PRIVILEGE:" STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY 307, 339 (2000) [hereinafter, CURTIS, FREE SPEECH].

(6.) Korematsu v. United States Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), was a controversial 6–3 decision of the Supreme Court that affirmed the conviction of a Japanese American citizen who violated an exclusion order that barred all persons of Japanese ancestry from , 323 U.S. 214 (1944).

(7.) Dennis v. United States Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party, USA and dealing with citizens' rights under the First Amendment to the , 341 U.S. 494 (1951).

(8.) 124 S. Ct. 2633 (2004).

(9.) Id. at 2660 (Scalia, J., dissenting).

(10.) Woods v. Miller Co., 333 U.S. 138, 146 (1948) (Jackson, J. concurring).

(11.) Id.

(12.) 395 U.S. 444 (1969).

(13.) JEROME FRANK, GOVERNMENT IS HUMAN, in JEROME FRANK, A MAN'S REACH: THE PHILOSOPHY OF JUDGE JEROME FRANK 84 (Barbara Frank Kristein, ed., 1965).

(14.) Compare United States v. Cruikshank United States v. Cruikshank, 92 U.S. 542 (1875)[1] was an important United States Supreme Court decision in United States constitutional law, one of the earliest to deal with the application of the Bill of Rights to state governments following the adoption of the , 92 U.S. 542 (1876) with United Brotherhood of Carpenters v. Scott, 463 U.S. 825 (1983).

(15.) CURTIS, FREE SPEECH, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 5, at 216-27.

(16.) See generally, ROBERT KACZOROWSKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE AND CIVIL RIGHTS, 1866-1876 chs. 7-9 (1985). For a brief discussion of the road not taken see Michael Kent Curtis, John A. Bingham and the Story of American Liberty: The Lost Cause Meets the "Lost Cause," 36 AKRON L. REV. 617, 652-661 (2003), part of a symposium at the University of Akron Enrollment in fall 2006 was 23,539 students.[1] The school offers more than 200 undergraduate degrees [2] and 100 graduate degrees [3]. The University's best-known program is its College of Polymer Science and Polymer Engineering, which is located in a  School of Law devoted to Bingham.

(17.) CURTIS, FREE SPEECH, supra note 5, at 282.

(18.) Schenck v. United States Schenck v. United States, case decided in 1919 by the U.S. Supreme Court. During World War I, Charles T. Schenck produced a pamphlet maintaining that the military draft was illegal, and was convicted under the Espionage Act of attempting to cause insubordination in , 249 U.S. 47 (1919).

(19.) Debs v. United States Debs v. United States, 249 U.S. 211 (1919), was a United States Supreme Court decision that upheld the Espionage Act of 1917.

Eugene V.
, 249 U. S. 211 (1919).

(20.) CURTIS, FREE SPEECH, supra note 5, at 310-14 (the charge and evidence against Vallandigham); on the larger Vallandigham story, Lincoln's shifting position, and the effort to expel a Democratic representative from Congress for making an anti-war speech, see generally id. at 300-56.

(21.) See, e.g., Jim Schlosser, Groups Call on Coble co·ble  
n.
1. Nautical A small flatbottom fishing boat with a lugsail on a raking mast.

2. Scots A kind of flatbottom rowboat.
 to Resign Chair, GREENSBORO NEWS & RECORD, Feb. 8, 2003, at B-l, describing Representative Howard Coble's recent defense of the internment of the Japanese.

Michael Kent Curtis (2)

(2.) Judge Donald L. Smith Professor of Public and Constitutional Law, Wake Forest University School of Law.
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