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

• Author: Schauer, Frederick
• Position: Book Review

The Wily Agitator and the American free speech tradition

PERILOUS TIMES: FREE SPEECH IN WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM. By Geoffrey R. Stone. New York, NY: W.W. Norton & Co., 2004.

In this important book on American freedom of speech during time of war, Geoffrey Stone quotes Abraham Lincoln asking, "Must I shoot a simpleminded soldier boy who deserts, while I must not touch a hair of the wily agitator who induces him to desert?" (1) As his subsequent lines make clear, (2) Lincoln had an answer to that question, and his answer was "No." For Lincoln, it made little sense to immunize the agent of a wartime enemy (3) in the name of the First Amendment, while punishing those lesser actors who found themselves, as we all do at times, persuaded by the words of others to do the wrong thing.

Although Lincoln's wily agitator is duly noted by Stone, he is in fact an infrequent presence in Stone's book. The book is instead dominated by a persuasive and meticulous historical account of the largely ineffectual and often right (4) speakers, writers, pamphleteers, and publishers who have been silenced by overeager American governments during time of war. Because the passions of war lead governments to overestimate the harm that such speakers may cause and, even more, overestimate the government's own ability to distinguish treason from legitimate dissent, the history of free speech in wartime, Stone argues, is generally a dismal one. Time and again, the government overreacts to legitimate dissent in the face of actual or feared hostilities, and even though we may have made halting progress, it would be a mistake to assume that the American free speech tradition is as safe during wartime as it is when passions are less inflamed.

By emphasizing the dissenter who is either harmless or right, however, Stone's account runs the risk of simplifying the story to such an extent that the true power of the free speech tradition in this country is missed. In neglecting the dissenter who, like Lincoln's wily agitator, is neither harmless nor right, and whose persuasiveness is not much limited by the misguided nature of his goal, Stone risks (albeit unintentionally) endorsing a world in which suppressing inconsequential or right speakers is clearly wrong, but in which suppressing dangerous speakers might be allowable. (5) This, however, is not our world, or at least it is not our country since 1919. Lincoln may well have been wrong in thinking that individuals like the wily agitator can or should be punished consistent with a robust First Amendment. But if we see the First Amendment as protecting not only harmless cranks and misunderstood visionaries but also those who are genuinely dangerous, we can understand that Stone's robust First Amendment entails societal tolerance for what is potentially a not inconsiderable amount of real harm. American society, with its traditions and its history, has largely decided that it should tolerate this harm, but tolerating harm is neither easy nor free. A major task for free speech theory is to explain why we do or should protect not only those who are right or harmless, but also those whose speech creates genuine dangers. (6)

By focusing disproportionately on those whose suppression is unreasonable, as Stone appears at times to do in this otherwise definitive treatment of free speech in wartime, we may wind up without a theory of the wrongness of reasonable suppression. And if we do not have an account of why even reasonable suppression is wrong, we may fail to explain what is most important about the American free speech tradition. An account of the American free speech tradition that emphasizes the wily agitator and his dangerous compatriots more than Stone does in this book need not be an argument for changing that tradition, but such a more inclusive account might produce an understanding of that tradition that is both deeper and more resistant to attack.

I

Stone's book is selective in its historical focus, but not inappropriately so. Although the military history of the United States includes, inter alia, the War of 1812, the Mexican War, the Indian Wars, the Spanish-American War, and more recent conflicts in the Dominican Republic, Panama, Grenada, Somalia, Bosnia, Afghanistan, and Iraq, (7) Stone focuses on the treatment of dissent in the context of six historical vignettes--the Sedition Act of 1798 (pp. 15-78); the Civil War (pp. 79-134); World War I and the ensuing Red Scare and Palmer Raids (pp. 135-234); World War II (pp. 235-310); the roughly simultaneous Korean War, Cold War, and period of McCarthyism (pp. 311-426); (8) and the war in Vietnam (pp. 427-526). The six examples seem well chosen, in part because they each contributed in important ways to the development of the American First Amendment tradition. There were genuine issues of dissent with respect to all of the other wars, police actions, invasions, incursions, and rescue missions that are a large part of the American foreign policy tradition, but Stone's selection of these six is hard to fault, given their causal effect on where we are now. Moreover, the six examples together provide strong evidence that the original development of the First Amendment tradition did not occur primarily in the courts. If for nothing else, Stone deserves much praise for providing accounts of nonjudicial debates, discussions, speeches, and publications that explicitly relied on the First Amendment, and that did so long before the First Amendment's judicial watershed in 1919. It was the period between 1964 and 1975 when the courts developed much of what makes the United States unique in the world with respect to freedom of speech and freedom of the press. (9) But the original contours for understanding these freedoms were explicated earlier and largely outside of the courts. (10) After Stone's discussions of the Sedition Act debates (pp. 16-29) and of the public controversies about freedom of speech issues during the Civil War (pp. 82134), it is impossible to think otherwise, and Stone deserves credit for avoiding the law professor's weakness of assuming that the history of any phenomenon is the history of the Supreme Court's decisions about it.

Not only do Stone's six case studies represent a balance between those focused on the courts and those focused elsewhere, but they also display a multiplicity of accounts of the primary impetus for control of speech during times of actual, feared, or impending military conflict. Speech control in World War I, in World War II, and during the McCarthy era was wildly popular, and officials could with some confidence suppress dissent without much fear of judicial invalidation or popular controversy. With respect to the Sedition Act of 1798, the Civil War, and the war in Vietnam, however, speech control was, according to Stone's account, less a matter of officials embodying the overwhelming will of the people, and more a matter of officials misusing their power to reinforce one side of hotly contested political, social, and moral issues. This may be most obvious for contemporary readers with respect to Vietnam, but Stone valuably illuminates how the suppression of dissent was an important weapon in political controversies at the time of the Sedition Act, in the North during the Civil War, and during the early periods of public and political ambivalence preceding America's entry into the First and Second World Wars.

Yet although Stone's examples are in many important ways representative of larger themes, in other ways they may be less so. One example of the latter point is in his focus on government. In Stone's account, some restrictions were popularly supported and others less so, but for all of them, Stone sees the government as the primary instigator and the chief villain. As a result, his account sometimes appears to omit examples in which the primary actor is the majority, rather than the government. (11) It is true that majorities do not put people in jail or take their money or even (these days) engage in direct punishment. However, to assume that government is the primary actor is to ignore the extent to which sanctions on flag burning, restrictions on aliens, defamation actions against unpopular publications, and related government initiatives are largely popularly driven. Although there is little doubt that government officials seeking to suppress dissent are often the chief culprits in unjustified restrictions on speech and press, this book could have given us a broader picture of the reaction to dissent had it included more examples in which government was the follower and mass public opinion the leader. (12) And the book could have given us a deeper picture had it included more explanation of the dynamics by which such public antidissent and antiforeigner opinion is created. Thus, had Stone followed John Stuart Mill in recognizing the power of social, and not just governmental, intolerance, (13) we might have emerged with a somewhat fuller picture of the sources of constraint on legitimate dissent.

II

A more serious way in which Stone's episodes are not fully representative of the span of First Amendment history, however, is to be found in the particular speakers on which Stone chooses to concentrate. Many of the speakers on which Stone focuses were simply inconsequential, existing and speaking at best on the margins of mainstream public debate. The writings of Jacob...