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

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In this marvelously readable new work by celebrated academic Geoffrey R. Stone, the author offers up for our reading pleasure a wonderfully pensive, comprehensive and timely contextual look at one of the key elements in the ongoing calculus of a free society; the right to free speech as embodied in the First Amendment. Opening by collaring Oliver Wendell Holmes' famous dictum regarding the social, economic and political wisdom in allowing all sorts and manners of thoughts and premises to freely compete in the marketplace of ideas, Professor Stone delivers a wonderful and sometimes whimsical history of just how critical such allowances of civil liberties are in guaranteeing the continuance of the republic. In so doing, he allows us a more meaningful window through which we can view the current battle-lines organized around civil rights issues emanating from concern over the Patriot Act and other infringements on personal liberties.

His anecdotes are telling, and often surprising, as when one learns that Abraham Lincoln suspended the right of the writ of habeas corpus several times during his embattled administration, or how the government tried groups of dissidents in the aftermath of World War One (including famous intellectuals such as Eugene Debs and the later sixties countercultural "back-to-the land" icon Scott Nearing) for treason for their free speech critical of the war effort. In sum, this book provides the reader with a marvelous compendium tracing the history of the continuing struggle and tension between the need for public order, on the one hand, and the right of individuals and groups to speak their minds without fear of official or unofficial consequences from the government at large. Surely, events such as the involuntary segregation and detainment of Japanese Americans during the course of WWII is among the most grievous of the episodes related herein, yet other, later efforts such as the actions of the Congressional House Un-American Activities Committee (or HUAC) originally established by Harry Truman to invoke official investigation of the civil activities of ordinary Americans as a kind of litmus loyalty test are even more egregious transgressions of the ways in which government can trample over the rights and prerogatives of its citizenry.

He takes great pains to help the reader to understand that most usually such blatant transgressions on individual rights to free speech and public assembly take place during times of great national danger, such as a state of warfare. In this sense, the invocation of such a state of war itself may signal the likelihood of such efforts by the state to limit or muzzle efforts by people to speak their mind and criticize the actions of the government. Thus, we are reminded that one most often describes the period of the late 1940s until the late 1980s as the time of the so-called `Cold War". Then too, in more contemporary terms, the presumptuous attachment and use of the term "War On Terror" and President Bush's strident use of that term to justify a whole range of governmental restrictions and proscriptions ranging from no-notice `sneak & peek' searches of individual homes or arrest and detainment without preference of charges (as was done for more than two years to at least two Americans) may not be entirely coincidental.

Yet it would both a misrepresentation of the book and its arguments as well as a disservice to readers to not mention that Professor Stone believes that many of the historical cases of abuse of the First Amendment that he cites are much less likely today, for a variety of reasons. First, as he takes pain to point out, the kinds of "major restrictions of civil liberties of the past would be less thinkable today", and he adds that both in terms of the evolution of the way the Constitution itself has been interpreted, especially by the U. S Supreme Court, and in the way our very culture views such basic civil liberties, we have indeed made remarkable progress. Professor Stones cites the ways in which the decisions regarding the disposition of infamous Pentagon Papers that disallowed the government's argument for restraint on the `Fourth Estate" (the press) since the Solicitor General had not proven such denial of access was warranted. Indeed, during the sixties era a number of such decisions clarifying the enormous latitudes and allowances that must be made by the government to avoid such transgressions on the civil liberties of its citizens.

If I were to offer any complaint or constructive criticism of the book, it is that it does not offer as much satisfaction regarding the author focusing his considerable intellectual prowess in considering more contemporary issues relating to the efforts by the current administration to stifle dissent and to drop a veil of secrecy over the machinations of the Federal Government in postures such as that taken by Vice-President Cheney in blocking public access to the list of attendees or the minutes of his meeting to determine national energy policy in early 2001. Yet one cannot not deny that despite its avoidance of such critically important contemporaneous events as are occurring even as we write, that this new book by Professor Stone is a truly valuable, worthwhile, and extremely readable book that will both entertain and edify anyone fortunate enough to open its pages. It is sure to be a great gift for Christmas, and one I can highly recommend. Enjoy!

Throughout Geoffrey Stone's engrossing examination of free speech during times of war, two crucial conclusions emerge. Both drive from an explanation articulated by Justice Louis in 1927: "fear breeds repression" and "courage is the secret of liberty." Exquisitely researched, gracefully written and forcefully argued, "Perilous Times" is a compelling exploration of the First Amendment in wartime. Professor Stone, through argument and anecdotal evidence, develops a convincing thesis that the American people, hesitatingly and often with frustrating slowness, have embraced not only the right, but the need, to honor dissent during times of national emergency. This is a hard-earned victory for free speech, one gained only through the raw and open courage of dissidents and the often underestimated and unseen courage of jurists who stood for principle when it mattered most. "Perilous Times" is an unusual historical analysis; its scholarship is meticulous, making it an academician's treasure, and its narrative drive is irresistible, welcoming a large audience to its research and understandings.

Wartime political dissent invariably brings charges of disloyalty and suspicions of motivation. Stone chronologically analyzes six periods of the condition of free speech during times of war; from the nation's first attempts to thwart free speech during the "half war" with France in the late 1790s to its coming of age in respect for the First Amendment in the Vietnam War era, those in power have had an uneven approach to the First Amendment. Within a decade of writing the First Amendment, a repressive congress passed the nefarious Alien and Sedition Acts of 1798, blatant contradictions to the First Amendment's guarantee of free speech. During World War I, the purportedly scholarly Woodrow Wilson unleashed an unprecedented assault on free speech through government-issued propaganda and outright prohibitions of "disloyal" speech. Of all the wartime presidents, Wilson's record receives the greatest criticism. At the onset of the Cold War, President Truman vacillated between steadfast commitment to First Amendment rights to outright capitulation to regressive legislation. His tolerance of "loyalty oaths" helped unleash McCarthyism.

Genuine heroes and heroines emerge in battle for free speech. There's the firebrand Mollie Steimer, whose outspoken opposition to capitalism and World War I earned her a fifteen-year prison sentenced for violating the Espionage and Sedition Acts of 1917. Her crime: distribution leaflets that proclaimed: "there is only one enemy of workers...and that is CAPITALISM." During the Great Depression, the "boy wonder" of academia, Robert Maynard Hutchins, steadfastly championed free speech and thought at the University of Chicago. With extraordinary elegance and quiet courage, he breathed life into the need for more, not less, speech during times of duress. It's not difficult to measure the author's respect for David Dellinger -- pacifist, activist and advocate -- who used the First Amendment to help create movements for social justice and change.

Despite the existence of rogues -- and there are many of them who degraded the First Amendment in times of war -- Professor Stone reserves his greatest disappointment for the American people, who often responded apathetically or with outright encouragement when the government enacted repressive measures. No government of free people can reduce rights to rubble without their tacit approval. "Perilous Times" painstakingly confirms the conclusion that wartime restrictions on free speech reflected contemporary public opinion.

This distressing conclusion does not daunt the author. In a stirring final chapter -- one in which the Bush administration receives harsh reviews -- Stone argues that our government needs some institutional procedures that safeguard civil liberties during times of war. When passions run highest and calls for restricted free speech ring loudest, Professor Stone offers a series of guidelines that each of the three branches of government would be wise to adopt so that basic liberties may not be impaired.

"Perilous Times" is an important, triumphant work. Celebrating often overlooked heroes (like Judge Learned Hand, probably the greatest twentieth century jurist never to sit on the Supreme Court) and quixotic characters (for instance, Congressman Matthew "Spitting" Lyon, jailed for dissent in the 1790s), this lucidly written analysis of free speech should achieve its desired end. Professor Geoffrey Stone summons us to have the courage to stand for the principles of the First Amendment when the fear-laced winds of repression blow hardest.

Don't be intimidated, as I first was, by the fact that the author was a law professor. Stone tells an important story in an engaging style, blending legal analysis with history lessons and character development - the result is a terrific book that is at the same time educational and thought-provoking. I confess I am a liberal, which is what attracted me to the title in the first place, but "Perilous Times" is not preachy. It is a true examination of the evolution of our relationship with the first Amendment. The good news seems to be that after each bow-wave of hysteria and fear, cooler heads prevail and free speech generally emerges intact. The bad news is that history does, in this case, seem to repeat itself. It's also important to note that the usual cast of towering figures in our history, like Roosevelt and Lincoln, were not innocent in their approach to defending the Constitution when they felt the country was in danger.

The bottom line is that I learned a tremendous amount from this book (and I bought it as a recreational read - I am not a law student) - it was terribly enlightening - and I think we ALL would do well to examine the issues that Stone presents - I believe we Americans don't take the time to have an appreciation for the Constitution really means - I guess we trust our lawmakers to cover that for us - but as Stone points out, that hasn't always worked out.

In my view, a must-read. Particularly today.

War excites passions.

The nation itself may find itself in peril; thousands, perhaps millions of lives are at risk. It is often thought that dissent during wartime is tantamount to being disloyal. This view puzzles libertarians. They view it as patriotism's highest manifestation.

During wartime, the line between dissent and disloyalty is cloudy. The First Amendment, prohibiting Congress from enacting any law abridging freedom of speech, is put to the test.

Some judges and legal scholars reason the First Amendment is essential to self-government. They argue the First Amendment promotes character traits that are essential to a robust democracy: skepticism, personal responsibility, curiosity, distrust of authority and independent thinking.

"The best test of truth is the power of the thought to get itself accepted in the competition of the market," wrote one of my favorite Supreme Court justices, Oliver Wendell Holmes, Jr.

Geoffrey Stone, the former dean of law provost at the University of Chicago, identifies six periods of widespread free-speech repression, dating back to the administration of the nation's second president, John Adams, and continuing through the Vietnam era. He identifies three principals that shape the Supreme Court's understanding of the First Amendment.

1. No government paternalism in the realm of political discourse.
2. Punish the actor, not the speaker.
3. Differentiate between low- and high-value speech.

This is a book about Americans struggling with the responsibilities of self-government during times of war. It is about the presidents who struggled balancing liberty and security. It is about the justices of the Supreme Court who attempted to define the difference. More importantly, it is about those individuals who had the courage to dissent during perilous times. Some were fools; others were villains; some were individuals of great moral courage.

Geoffrey Stone has written a timely masterpiece about individual Americans who struggled to preserve our liberties.

Perilous Times is a fascinating account, by Geoffrey R. Stone, of free speech in wartime, that is oddly both often a little frightening and quite hopeful. The six periods on which the author focuses are the sedition act of 1798, the Civil War, the two World Wars, the Cold War, and the Vietnam War. Three of these periods show a carlessness with the First Amendment (1798, World War I, and the Cold War) on the part of national leaders that is balanced with a less hysterical reaction in the other three wartime periods. The author is brilliant in analyzing why this is so and he tells a fascinating story of a progressive, though never inevitable or strictly linear, development of the importance of a free press and a free discourse of ideas, even (perhaps particularly) during times of national crisis. A brilliant, important, truly fascinating tale.

As good a book as I've read in I don't know how long. Deatailed, scholarly, and giving credit to all sides, it take the reader throught a very complex and intersting journey and traces the evolution of the First Amendment through critical periods of history. Particularly relevant today, but well worth reading in any event.

As recent history attests to, some people act irrationally when under conditions of stress, and frequently do not hesitate to deny others basic human rights or even react violently. This kind of behavior does not occur under normal conditions of life, so the trick is get back into mental equilibrium as soon as possible after the shocks have occurred. The time needed to do this varies considerably between individuals, and the individuals who are having trouble calming themselves put undue burdens on those who do not. Therefore there is usually a considerable amount of tension between these two types of people, and this in fact creates more stress on top of what was experienced by the original shocks.

One can see this type of conflict throughout the history of the United States, as the author of this book shows in great detail in this book. Superbly written and full of helpful references and footnotes, the author narrows his discussion to the effects of war, or rumors of war, or invented threats of war, on free speech. When reading the book one is amazed to learn the low degree to which citizens of the United States have placed on the First Amendment, even as early as 1798. The First Amendment was not really thought of as sacrosanct as it is at the present time (outside of the government). This may explain why early on in U.S. history, the populace was quite willing to stifle speech they thought as treasonous or threatening in time of war (or false threats of war). And the stifling of speech was not unique to a particular political party, newspaper, magazine, or pamphlet. Both the left and the right, and in between, took their turns in the suppression of speech at various times in U.S. history.

Everything in the book is fascinating, and those readers who are not aware of the events discussed may be shocked that they actually took place in a country that so prides itself on freedom, both in speech and association. The author though is not content to merely report facts. He analyzes the different attitudes about free speech, both in the minds of the citizens, the press, and in the courts. Legal issues in constitutional law are all discussed in great analytical detail, and the author does not hesitate to express his own opinions on how the different cases should have been decided. A book like this definitely stands out against the hype and yellow journalism that so frequently is labeled as objective analysis these days. It is a welcome part of the political and legal literature, and all readers willing to take the time to its study will walk away with a massive amount of information and insight, and be better equipped to grapple with the issues of free speech as even now they are being debated (and suppressed). Cooler heads did prevail throughout the U.S. constitutional history of free speech, as this book proves without question. One can only hope this will continue to be the case.

There are already several good reviews on this book, so I will only suggest reading the following books (dealing with USA constitutional and political ideas) in addition to Stone's:

1) "Constitutional History of the American Revolution" by John Phillip Reid;

2) "America's Constitution: A Biography" by Akhil Reed Amar;

3) "Liberty's Blueprint: How Madison and Hamilton Wrote The Federalist, Defined the Constitution, and Made Democracy Safe for the World" by Michael Meyerson; and

4) "Lincoln's Constitution" by Daniel A. Farber.

~Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism~ is an erudite constitutional analysis of First Amendment freedoms to speech and assembly. Throughout American history, free speech and freedom of assembly has been adversely affected by rationalized wartime suppressions in the name of security. Justice Robert Jackson in the mid-20th century declared, "It is easy, by giving way to passion, intolerance, and suspicions of wartime, to reduce our liberties to a shadow, often in answer to exaggerated claims of security." Sadly, overzealous wartime suppression of liberty has plagued the United States throughout much of its history.

Geoffrey R. Stone has put together a well-written account of American constitutional history from the time of the Alien and Sedition Acts of 1798 to the Patriot Act of 2001. His focus is First Amendment Freedoms. In 1798, ostensibly to guard against the threat of a counterpart "French Revolution" spearheaded by imagined American Jacobins from emerging on American soil, Federalist Party officials marshaled the Alien and Sedition Acts as an effective counterpoise. Its constitutionality was clearly suspect. In reality, it was a shameless partisan attempt to prosecute and suppress critics of the Federalist administration. Virginia and Kentucky responded by protest and state interposition through their Resolutions of 1798, which threatened state nullification of unconstitutional acts.

With much of the major wars throughout American history from the Civil War of the 1860s to the Great War, World War II, Vietnam, and now the Iraq War, shameless attempts emerged to intimidate, stifle and suppress political dissent. Lincoln was the precedent setter for unconstitutionally suspending the writ of habeas corpus, and found a follower to his dubious doctrines in George W. Bush. During the Great War, resident aliens were deprived of the right to due process prior to deportation. The Cold War paranoia was so absurd that the FBI drew up reports citing the classic 1946 Frank Capra movie like It's A Wonderful Life as being evidence of subversive communist propaganda. And thus began the McCarthy era. The 1970s felt the tragedy of the Kent State Massacre in Ohio as National Guard troops shot and killed students protesting the war in Vietnam. In the 1970s, ostensibly the FBI and CIA were reigned in on by Congress for running astray in anti-war activities, but those restrictions came loose following 9/11 when somehow unbridled federal power became more trustworthy.

James Madison judiciously reminds us: "The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences of the principle, and they avoided the consequences by denying the principle." It was to secure against suppression of freedom of conscience that the First Amendment was framed. It was flatly a negative against Congress to legislate on such matters, hence the interpretative keystone, "Congress shall make no law..."

Professor Stone has provided the most complete review of America's struggle with Free Speech and security. It quickly becomes obvious that, more often than not, America's past uses of "national security" to muzzle Free Speech is more about political opportunism than any real concern over the Nation's welfare.

From the Alien & Sedition Acts to the Nixon White House, Professor Stone shows why all Americans should don a skeptical attitude whenever our leaders proffer "security" as the rationale for clamping down on dissent: it is all too often a calculated "baiting" of a political majority with a group out-of-step with conventional wisdom. Moreover, for those unfamiliar with First Amendment jurisprudence, the book brings the stories behind the litigation to life in a way that never bores the reader--it is always blended into the narrative in a fluid and enjoyable fashion.