'Perilous Times': War of Words

[R.A. Hettinga]

<http://www.nytimes.com/2004/11/07/books/review/07HITCHENS.html?8hpib=&pagewanted=print&position=>

The New York Times

November 7, 2004

'Perilous Times': War of Words
By CHRISTOPHER HITCHENS


PERILOUS TIMES
 Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism.
By Geoffrey R. Stone.
llustrated. 730 pp. W. W. Norton & Company. $35.

OWEVER seductively it may be phrased, the offer of an exchange of liberty
for security has a totalitarian hook sticking out of its protectively
colored bait. Societies that make the trade have very often ended up with
neither liberty nor security. But on the other hand (as Fay Wray entitled
her own memoir of monstrousness in New York) totalitarianism can present a
much more menacing threat from without. I have heard serious people
describe the reign of our pious present attorney general as fascistic.
Given that jihadist armed forces could still be in our midst, that might be
looking for fascism in all the wrong places.

 What this argument has long needed is the discipline of historical
perspective, and Geoffrey R. Stone, a professor of law and former dean at
the University of Chicago, has come forward at precisely the right moment
with an imposing book that offers precisely that. In ''Perilous Times: Free
Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism,''
he shows how the United States has balanced (and unbalanced) the scale of
freedom versus the exigencies of self-defense. And he also demonstrates a
kind of evolutionary learning curve, whereby the courts have distilled some
of our dearly bought experience.

 America's first experiment with a national-security state was at once its
most unambivalently disastrous and its shortest lived. The Alien and
Sedition Acts of 1798 were, to begin with, flagrantly partisan. The easiest
proof of this is the exemption of the vice president from the list of
official persons who could be calumniated, simply because the
anti-Federalist Thomas Jefferson was at that time the holder of the office.
They also vastly exaggerated the threat from revolutionary France and
flatly negated the spirit and letter of the First Amendment. Editors were
imprisoned; foreign-born friends of America like Thaddeus Kosciusko had
already felt compelled to leave the country. So great was the eventual
revulsion from this that, six and a half decades after the acts were
repealed, President Lincoln had no choice but to read the most viperous
editorials in the Democratic press, describing him as a demented tyrant
bent upon a bloody war of self-aggrandizement.

 Stone's pages on this period are completely absorbing. He shows that
Lincoln did imprison or fine the occasional editor, but with scant relish
for the business, and that wartime censorship was so easily evaded as to be
no censorship at all. The crisis came, rather, over conscription and the
concomitant suspension of habeas corpus. Lincoln's secretary of state,
William Seward, was widely quoted as having told the British minister: ''I
can touch a bell on my right hand and order the arrest of a citizen in
Ohio. I can touch the bell again and order the imprisonment of a citizen of
New York, and no power on earth but that of the president can release them.
Can the queen of England, in her dominions, say as much?'' This boastful
inversion of the original purposes of the American Revolution may have been
overstated for effect, but not by much. Lincoln did order nighttime
arrests, and did ignore Chief Justice Roger B. Taney's ruling that a
president had no power to deny habeas corpus. Taney's position is that the
Constitution reserves such extreme measures only for the Congress. If a
president wants to assume such powers, he cannot do so without at least
resorting to the courts, which Lincoln steadily declined to do.

 Instead, he rather demagogically demanded to know why the law should force
him to shoot ''a simple-minded soldier boy who deserts, while I must not
touch a hair of a wily agitator who induces him to desert.'' The cause
celebre here became that of Clement Vallandigham, a leader of the
Copperheads, northern Democrats sympathetic to the South, who spiritedly
opposed both conscription and emancipation. He was arrested, then exiled
from the Union. I have never seen it argued that this measure had any
influence on the desertion rate (improbable in any case, given that the
thought of the firing squad probably had a greater effect on the mind of
the simple-minded soldier boy). The best that can be said is that Lincoln
seems to have sensed the absurdity of his own logic, and regularly urged
local commanders not to embarrass him by locking up people who merely
uttered anti-Union sentiments.

 The next two wartime crises involved the killing of foreigners rather than
Americans, and in both cases the ''loyalty'' of ethnic or national
minorities was in question. During World War I, the persecution of
German-Americans put H. L. Mencken in a permanent state of alienated rage,
while Woodrow Wilson outdid Lincoln in vindictiveness by refusing to
release Eugene V. Debs, America's finest socialist, until well after the
war was over. Debs had been imprisoned for urging Americans to take no part
in an imperialist war; but against recent immigrants, mainly Jews, the
weapon of deportation was also employed. It's from this period that we have
Justice Oliver Wendell Holmes's notorious observation about shouting
''fire'' in a crowded theater as a symbolic limitation on free expression.
(The antiwar forces might have retorted that the theater actually was on
fire.) Holmes, however, became disgusted by some of the excesses of
authority, and made some important rulings the other way.

 In the run-up to World War II, Franklin Roosevelt swung out against the
antiwar isolationists with Lincoln's vigor, denouncing Charles Lindbergh as
a second Vallandigham. The trial of William Dudley Pelley, leader of the
fascist Silver Shirt militia, provided the war years' test case. Pelley had
taken the Nazi side, proclaimed an administration conspiracy to exploit
Pearl Harbor and announced that Americans were being drafted to fight a
Jewish war. He was sentenced to 15 years in prison and served 10, which
meant that he also stayed inside until after the war was over. (Stone does
not notice the irony that he served his time in the penitentiary at Terre
Haute, Ind., birthplace of Debs and today the site of his museum.) In a
fascinating discussion of the case, Stone shows that Pelley was right in
one respect about Pearl Harbor: the Roosevelt administration really did
cover up the extent of the damage inflicted by the Japanese. Official
statements described burned and sunken battleships as still afloat. Stone
also provides a meticulous discussion of the internment of the
Japanese-American population, even though this was not exactly a ''free
speech'' question.

 If this argument ran in a straight line, one would expect the United
States, after one civil war and two global conflicts, to have many fewer
liberties than it had in the 1850's. But the effect is as much dialectical
as it is cumulative, if not more so. As Stone demonstrates, the courts have
made concessions based on precedent. In the Pelley case, a court of appeals
reconsidered the Espionage Act of 1917, under which Pelley had been
charged, to refine and dilute the definition of subversive speech. There
was a line to be observed, demarcating the propagation of deliberate
falsehood from the circulation of disputable opinions. By the time the
United States was next divided in wartime, during the Vietnam years, the
courts were ready to rule that speech and action should in effect be
considered separately. In one case, it was ordered that Julian Bond, the
charismatic young civil-rights campaigner, could be seated in the Georgia
legislature despite his opposition to the draft. In another, it was decided
that an Ohio Klansman named Clarence Brandenburg should be allowed to go on
yelling his head off. So the cases of Bond and Brandenburg are now cited as
joint precedents and, as Stone points out, there have been no federal
prosecutions for speech or ''incitement'' since Sept. 11, 2001.

 It might be too soon, not to say too complacent, to make a case for
American exceptionalism in this regard. And Stone does not take up the
peacetime panic after the 1995 bombing of the Federal Building in Oklahoma
City that produced the Anti-Terrorism and Effective Death Penalty Act,
which is still employed for prosecutions and deportations. There was enough
law already on the books, you might say, before the passage of the Patriot
Act. And surely one central part of that act -- the correct decision to
allow the sharing of intelligence between foreign and domestic agencies --
could have been made for its own sake. One closes this admirable book more
than ever determined that the authors of the Constitution were right the
first time, and that the only amendment necessary might be a prohibition on
the passage of any law within six months of any atrocity, foreign or
domestic.

 CHRISTOPHER HITCHENS is a columnist for Vanity Fair and a visiting
professor of liberal studies at the New School University. His new
collection of essays, ''Love, Poverty and War,'' is forthcoming this winter.

-- 
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"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'