The war over free speech
Geoffrey Stone, JD’71, arrived on campus
to start his law degree one month after the explosive 1968 Democratic
National Convention. He may have missed a firsthand blast of tear
gas in Grant Park, but the violent clashes between police and Vietnam
War protesters left a career-defining mark on Stone, now the Harry
Kalven Jr. distinguished service professor in the Law School.
War protests and civic activism were central
debate themes at universities nationwide when he entered the Law
School. The era’s tension and volatility piqued his interest
in constitutional law, and since then Stone has become a recognized
First Amendment authority. But it wasn’t until spring 2002
that he decided to systematically examine dissent and free speech
during periods when the United States has been at war.
The result is Perilous Times: Free Speech
During Wartime (W. W. Norton), to be published eight days before
this year’s presidential election. While researching the book,
Stone says, he sought answers to two primary questions: What are
the appropriate limits on government criticism during wartime? And
has the United States made progress in respecting the citizenry’s
right to such dissent?
“The core of free speech in the history
of the United States is tested in wartime,” he says, pointing
out that only during wars has the U.S. government restricted dissent
that was straightforward criticism, not an attempt to incite violence
or a coup d’état. Historically, he explains, the justification
for restrictions has been that criticism would undermine national
security by promoting disorder or disloyalty, or by signaling to
the enemy that the United States doesn’t have the strength
to see the conflict through.
Stone’s examination covers the wartime
gamut, from the Sedition Act of 1798, when the fledgling democracy
was on the verge of war with France, to the Patriot Act, created
in response to the September 11, 2001, terrorist attacks. He cautions
against theories arguing that any particular wartime crackdown has
been harsher than another. Reactions, he says, depend on the degree
of perceived threat.
While the United States has moved generally toward
fewer restrictions on dissent, he says, “it’s more like
a graph in which the line goes up and down and up and down,”
alternating between relaxed and strict.
During the Civil War, for example, Abraham Lincoln
“was more tolerant of wartime criticism than any other wartime
leader we’ve had,” Stone says. Part of the reason, he
notes, is that Lincoln wanted to keep ambivalent border states from
joining the Confederacy.
In World War I, however, Woodrow Wilson’s
administration imposed severe restrictions on war criticism with
lengthy prison sentences. Wilson’s hard line responded to
public opposition over entering a war without being attacked.
The U.S. pattern, Stone emphasizes, has been
to overreact by suppressing dissent during wartime and then, months
or years later, regret having done so. That collective conscience
pushes the country to recognize civil liberties, he says. For example,
as Communist blacklisting and the cold war waned, the United States
strengthened its resolve that dissent shouldn’t be punished.
Under the legacy of past failures, it became
impossible to expressly punish government critics during the Vietnam
War, Stone says. Instead the methods of protest—public profanity
or desecrating the American flag—were punished. “There
were no direct prosecutions just for criticizing the government,”
he notes, “and that was an important step forward.”
But the government used various other tactics—misinformation
campaigns about antiwar groups, for example—to suppress dissent.
After September 11, Stone says, government reaction
toward civil liberties was predictable yet excessive. “The
Patriot Act was enacted in a way that follows a pattern that is
not healthy,” he observes. The legislation, which grants the
government increased investigative and surveillance powers, was
passed hastily, without the customary congressional deliberation.
Still, the Bush administration’s response to Iraq and to war-on-terror
criticism, he says, has been more measured compared to such severe
crackdowns as Wilson’s during World War I. But if terrorists
attacked the United States a second or third time, he adds, government
tolerance probably would be even lower than it is today: “There
would be a much greater impetus for government officials to say
dissent is disloyal.”
Protecting First Amendment rights will always
require constant vigilance, says Stone, whose book will serve as
a springboard for a January free-speech conference at the Rutgers
University School of Law–Camden. “Fostering a culture
of democracy or civil liberties is a continuing process,”
he says. “There’s no point at which we can say, ‘Okay,
we’re done.’”—Rebecca Voelker
For more on free speech during wartime, listen
to Stone's video interview posted on Research
at Chicago, a University Web site.