FIGHTING WORDS: The Silencing Power of War

Marro, Anthony

FIGHTING WORDS The Silencing Power of War Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism By Geoffrey R. Stone W.W. Norton. 730 pp. $35

First there was Matthew Lyon, the feisty Vermont congressman who wrote a letter to the editor accusing President John Adams of being “swallowed up in a continual grasp for power… ridiculous pomp, foolish adulation, and selfish avarice.” For this he became the first person indicted under the Sedition Act of 1798. He was tried before a partisan Federalist judge, convicted and tossed into a filthy prison cell in Vergennes. While he was serving his term, his Vermont constituents reelected him, and when his four-month sentence ended he immediately announced, “I am on my way to Congress” before stepping out of his cell.

Then there was Clement Vallandigham, a former congressman and one of the most prominent of the “Peace Democrats” during the Civil War. After he made a speech denouncing the war as “wicked, cruel, and unnecessary,” General Ambrose Burnside had him dragged from his house, charged with making “treasonable utterances” and promptly tried, convicted, and jailed by a military commission. If Burnside had been half so decisive at the stone bridge at Antietam the Union cause might have been better served, but that’s a discussion for another time.

Then there was Eugene V. Debs, the five-time Socialist Party candidate for president. He was arrested, convicted, and sentenced to ten years in prison under the Espionage Act for urging Americans not to enlist and fight in World War I.

Geoffrey Stone finds evidence of progress in the fact that the Bush administration didn’t prosecute Howard Dean for opposing the war in Iraq. But that said, he’s not at all sanguine because, as he demonstrates effectively in this compelling and timely book, “the United States has a long and unfortunate history of overreacting to the perceived dangers of wartime,” and free speech and civil liberties have been among the chief casualties.

“The Bush administration went out of its way after September 11 to excite rather than calm public fears,” he writes. “A terrified public feared more attacks. The administration immediately characterized the event as the first stage of a ‘war,’ rather than as a heinous crime.” “Declaring a war on terrorism was more than a rhetorical device to rally the public,” he notes, because it allowed Bush to claim “the extraordinary powers traditionally reserved to the executive in wartime.” For example, he sees as wrongheaded and dangerous the arrests and indefinite detention, on possible immigration violations but with no access to lawyers or judicial review, of more than 1,000 noncitizens, mostly Muslims who were lawfully in the U.S. and not charged with any crime. And he deplores the degree to which Attorney General John Ashcroft has “effectively dismantled” the guidelines former Attorney General Edward Levi had put in place three decades ago to limit the FBI’s ability to investigate political and religious activities.

The central point of this book is that the extraordinary powers granted a president in wartime have not always been obtained honestly or used wisely. The Federalists exaggerated the risk of a French invasion in 1798 to silence opposing Republican editors. Lyndon Johnson exaggerated the action at the Gulf of Tonkin to justify a more aggressive buildup in Vietnam. And in the same way, Stone writes, “George Bush exaggerated the evidence that Saddam Hussein had weapons of mass destruction in order to justify his invasion of Iraq.”

He’s particularly concerned about the Bush assertion (later revised) that “the war against terrorism will never end”; past wars have been relatively short and the restrictions on civil liberties that flowed from them usually short-lived. Many were reversed by the courts, modified by Congress, and rejected as excessive by a public that had clamored for them in a time of crisis but then hated itself in the morning. “A war of indefinite duration, however, compounds the dangers both by extending the period during which civil liberties are ‘suspended’ and by increasing the risk that ’emergency’ restrictions will become a permanent fixture of American life,” he warns.

Stone is a professor of law at the University of Chicago, and a former dean of its law school. His legal heroes include former Attorney General Francis Biddle, whom he quotes as saying “the Constitution has never greatly bothered any wartime president.” Biddle was referring specifically to Franklin Roosevelt, who Stone says supported civil liberties in the abstract, “but not when they got in his way.” But Stone suggests that the actions of wartime presidents both before Roosevelt and since make Biddle’s a warning worth keeping in mind.

The focus of the book is issues not so much of free press as of free speech in the broadest sense, including political speech, academic freedom, and public dissent. It deals with six periods in our history when the government attempted to prosecute critics of officials or policies: the Sedition Act of 1798; the suspension of habeas corpus during the Civil War; the jailing and deportation of opponents of World War I; the internment of 120,000 Japanese Americans during World War II; the McCarthyism of the cold-war era; and the attempts to prosecute Vietnam War protestors and to block the publication of the Pentagon Papers. It vividly recalls a time in the not so distant past when forty-two states required loyalty oaths of public employees. Loyalty oaths were also required of all insurance salesmen in Washington and all pharmacists in Texas, as well of people applying for unemployment benefits in Ohio, public housing in California, and fishing licenses in New York. In the process, it details step by step just how the First Amendment – which began as a broad and rather vague constitutional principle, not a well-settled legal doctrine – became strengthened and buttressed over the years, more by the courts than by presidents or Congress. And it shows in episodes that are both painful and shameful to recall just how fragile the idea of free speech can be.

Despite the dreary record he lays out, Stone stipulates at the start that the government has never attempted to punish speech opposing government policies except in time of war, although he includes the long-running “cold war” in his definition of wartime. He doesn’t suggest that we should never restrict free speech in wartime: war does change things. But suppressing speech because it is truly dangerous to the national interest is one thing; suppressing it for partisan interests or to silence legitimate criticism is something else. The problem is that it’s often difficult to tell the difference, and over the years we’ve done as much of the latter as of the former.

As Stone reminds us, newspapers haven’t always championed the free speech of others. Hearst and McCormick applauded Senator Joseph McCarthy; the New York Daily News once ran a cartoon depicting draft-card burners as rats. He says that the media could play a key role in helping protect civil liberties, mainly by educating people on the dangers of repression and by not causing panic by sensationalizing low-risk dangers. But he deals with this in just one paragraph in a 691-page book, and his focus is much more on the three actual branches of government than on the supposed fourth.

Though this isn’t a book about journalism, it’s a valuable one for journalists, with reminders that during some important times in our history the press was not so much censored as co-opted and compromised. This was particularly true during World War I, when the Committee on Public Information, headed by the journalist George Creel, produced a great deal of propaganda that was willingly passed on to the public by newspapers, disguised as news. As Frank Cobb, the editor of the New York World, observed at the time, the government conscripted public opinion just as it had conscripted men and money and materials. And once having conscripted it, the government then mobilized it “and taught it to stand at attention.”

It would be an overstatement to say that anything like this happened in the months before the start of the war in Iraq. Hut the mea culpas now being voiced by news organizations about some of their early reporting on Hussein’s weapons of mass destruction are a reminder that in the perilous time of the present they ignored, at least momentarily, some of the lessons of the perilous times of the past.

Anthony Marro is a former editor of Newsday.

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