If it is true to say, as Randolph Bourne did, that war is the health of the state, it is equally true to say that war is the sickness of individual liberty. The state always menaces its people with an array of orders, prohibitions, and confiscations, but never so much as in times of war, when it can count on widespread support for all measures said to be necessary to ensure victory.
That is especially so when it comes to dissent. Many citizens and politicians are seized with the idea that any disagreement with the war policies is a threat to national survival and must be suppressed at all costs. Opposition to or even indifference toward the war is equated with disloyalty, and the deeply ingrained notion that the people have an overarching obligation of loyalty to the state rises to support the crackdown. Censorship and punishment are just what the traitors deserve!
In Perilous Times, University of Chicago Law School professor Geoffrey Stone chronicles the American experience with the attack on civil liberties during times of war. Stone, a noted First Amendment scholar, has written an elegant book that begins with the Sedition Act of 1798 and continues through the Vietnam War. He explains in his introduction,
Time and again, Americans have allowed fear and fury to get the better of them. Time and again, Americans have suppressed dissent, imprisoned and deported dissenters, and then — later — regretted their actions. This book is first and foremost about why this happens and how we can break this pattern as we look to the future.
As a history, Perilous Times is a complete triumph, meticulously researched and clearly told. When it comes to prediction and prescription, however, I am not sold on the author’s optimism that the future will be better than the past.
Stone begins with a discussion of the importance of freedom of speech. The First Amendment says that Congress shall make no law abridging the freedom of speech or of the press. It is a blanket prohibition against efforts by the federal government to stifle free expression, a prohibition that the Supreme Court has extended to all units of government through the Fourteenth Amendment. Stone finds strong reason for that law:
For the government to censor public debate because it thinks a particular speaker unwise or ill informed would usurp the authority of citizens to make their own judgments about such matters and thus undermine the very essence of self-government.
Therefore, the First Amendment protects citizens (or should do so, at least) against the regrettable tendency of public officials to control information and discourse so as to preserve their authority.
But precisely what does it mean to “abridge” freedom of speech or the press? Only a few years after the nation’s founding, that issue was squarely raised with the passage of the Sedition Act of 1798. Annoyed over criticism from the Jeffersonians that President Adams’s bellicose policies risked drawing the United States into the war between England and France, the Federalist-controlled Congress passed into law a bill that criminalized any criticism of “a false, scandalous and malicious” nature against the government and its officials.
While it seems crystal clear today that such a law runs afoul of the First Amendment, at the time the Federalists defended it by arguing that what it means to “abridge” freedom of speech is to prevent people from speaking or writing, and the sedition law only punished people for their seditious expressions after they had made them. The Federalists maintained that their view, that the First Amendment prohibited only prior restraints on speech and publication, was well-grounded in English legal tradition.
Holding control of the presidency, Congress, and the judiciary, the Federalists proceeded to ardently enforce the Sedition Act. Probably the most famous prosecution was of Vermont Congressman Matthew Lyon, whose letter criticizing President Adams caused him to spend months in a jail cell and to be hit with the astounding fine of $1,000. Lyon was actually reelected while in jail, and later his fine would be paid from a fund raised by voluntary contributions from such notables as Thomas Jefferson, James Madison, and James Monroe.
Stone recounts several other trials, including that of Thomas Cooper, a wealthy, well-educated man who practiced both law and medicine. For having written an essay attacking John Adams, he was accused of a “malicious attack on the character of the President,” done with the intention of arousing “contempt of the people of this country against the man of their choice.” Cooper ably represented himself, but the court was a stacked deck. The presiding judge, Samuel Chase, was a Federalist zealot whose instruction to the jury was tantamount to an order to convict. It did, sentencing Cooper to six months in prison and levying a fine of $400.
There was never any judicial review of the Sedition Act cases because the law expired at the end of John Adams’s term of office. After assuming the presidency in 1801, Thomas Jefferson almost immediately pardoned all who had been convicted under the Sedition Act, so the Supreme Court had no occasion to decide whether the Federalist or the Republican view of the meaning of the First Amendment was correct.
In conclusion, Stone comments that the Sedition Act and subsequent events show that those in power may exploit a threat to the nation’s security to serve their partisan ends. A time-honored strategy for consolidating power is to inflate the public’s fears, inflame its patriotism, and then condemn political opponents as “disloyal.”
The nation would witness that strategy many more times...
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