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January|February 2005
Time Bomb at Mauna Loa By Bill McKibben
Pharma Furor By Richard A. Epstein
Not So Free Speech By Rod Smolla
Touting Thomas By Stephen B. Presser

Not So Free Speech

In perilous times, we most need this basic liberty—and the country's great libertarians have struggled to find reasons to protect it against censorship.

By Rod Smolla

FREEDOM OF SPEECH MAY BE AN ESSENTIAL COMPONENT of the American social compact, but there have always been thinkers who have asserted that speech which threatens the compact ought not be tolerated. Thomas Hobbes thought it axiomatic that the state should have the authority to exercise censorship over any opinion, for "the Actions of men proceed from their Opinions; and in the well governing of Opinions, consisteth the well governing of mens Actions."

Censorship has occurred most often in periods of conflict and, in some, severely. Inter arma silent leges: In times of war, the laws are silent (or at least muted). Abraham Lincoln was willing to countenance the notion, and Attorney General John Ashcroft and Chief Justice William Rehnquist each did as well. In Rehnquist's words, when a nation is at war, the balance between freedom and order should tilt "in favor of order."

In Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism, Geoffrey Stone has written an elegant exploration of the American struggle with this fundamental question. His book resembles a Ken Burns documentary, with a strong narrative punctuated by period illustrations—photographs of Lincoln, Emma Goldman, and Abbie Hoffman; scenes from antiwar marches on the Washington Mall and from the "police riot" at the 1968 Democratic National Convention in Chicago; and cartoons lampooning Senator Joseph McCarthy. The book moves through American history with a meandering grace, to reveal the tension between our love of free speech and our fear that certain speech threatens national survival.

This division has existed from the country's beginning. The position of the Federalist Party of President John Adams was that of the English jurist William Blackstone. According to Blackstone, "where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law . . . the liberty of the press, properly understood, is by no means infringed or violated." For Blackstone, freedom of speech was extremely limited, extending only to prohibit governmental restraints on speech prior to publication. Freedom of the press, he wrote, merely "consists in laying no previous restraints upon publications." When the First Amendment was ratified in 1791, Blackstone's theory of prior restraint was arguably the beginning and the end of what most Americans understood freedom of speech to mean.

With Blackstone's logic at the party's roots, the Federalists in Congress passed the highly repressive Alien and Sedition Acts in 1798, out of the conviction that national survival hinged on snuffing out the perceived seditious diatribes of German, Irish, and French immigrants who opposed the Adams Administration's foreign policy, which they viewed as skewed toward England and against France. The Federalists used the law to hound Republican politicians and opinion leaders, indicting 15 leaders of the party, including prominent newspaper editors.

Fortunately, the Federalists made up only half the story. The rival Republican Party, led by Thomas Jefferson, wanted to allow for genuine discussion of the great contests of the day, and let dissenters openly express their views on war and peace. When Jefferson led the Republicans to power and assumed the presidency in 1801, one of his first official acts was to pardon everyone who had been convicted under the sedition law, stating that the abominable statute was henceforth "to be nullity as absolute and palpable as if Congress had ordered us to fall down and worship a golden image."

There are, though, nuanced lessons to be drawn from this early conflict between national security and freedom of speech. Jefferson and his Republicans look like free speech heroes, but that portrait must be balanced by the fact that one of Jefferson's primary complaints was about a side issue: that the sedition law violated principles of federalism, encroaching on the power of states. Jefferson was quite capable of railing against what Stone calls "the licentiousness of the press," once observing that a few strategic prosecutions of prominent editors would have "a wholesome effect in restoring the integrity of the presses."

Many Federalists ultimately came to view the sedition law as a colossal political failure, and they were glad that a sunset provision meant that it expired the month Jefferson entered office. To the Federalists, as Stone put it, the "law had not dampened the vigor of Republican opposition," but in the words of Adams's son, John Quincy Adams, had "operated like oil upon the flames." Perhaps more pointedly, the backlash to the law had contributed to the defeat of John Adams and to the ultimate demise of the Federalist Party. Congress repaid all fines levied under the law, with interest, but the question of how much freedom of speech should be tolerated in times of war persisted.

PERILOUS TIMES EXPLORES TWO OF THE RECURRING ARGUMENTS that have been advanced to reduce constitutional protection for civil liberties in times of war. The first flows from the concept of "balancing," as reflected in the Rehnquist idea about society tilting in favor of order. This is the common-sense notion that civil liberty must always be balanced against other societal interests, such as a nation's security. Those interests naturally intensify in dangerous times, and protection of liberties such as freedom of speech must yield accordingly.

The second arises from a judgment about relative institutional competence. Civil liberties are normally thought of as existing within the special province of the judiciary. National security, in contrast, is usually understood as handled solely by the executive and legislative branches. In times of war, judges shouldn't make national security decisions. Generals should, because they're trained in the art of war. As the general of generals, the president deserves great deference. Speech concerning national security is unique in its potential for catastrophe. "Loose lips sink ships," goes the rhyme: Devastation may follow the wrong speech at the wrong time. And when it comes to a trade-off between liberty and national survival, the understandable reflex of those in command, those to whom security is entrusted, is to do what they believe it will take to ensure that the nation endures.

A look at Abraham Lincoln helps show the tensions. In defending his 1861 suspension of the writ of habeas corpus, an act he undertook as president without the participation or assent of Congress, Lincoln asked, "Are all laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?"

His conception of freedom of speech in times of war was quite sophisticated, as Stone points out. Rather than arguing that the Constitution was irrelevant, he said that the application of constitutional principles might be different then than in times of peace. In 1863, Clement Vallandigham, a former member of Congress and Democratic Party antiwar activist, was prosecuted for his vitriolic criticism of the Civil War effort and the imposition of martial law, which included a ban on "declaring sympathies for those in arms against the government of the United States." Lincoln's view was that a critic like Vallandigham could be convicted only if he both intended to cause unlawful conduct such as serious interference with the war effort, and was likely to succeed.

Lincoln did support the conviction of Vallandigham, however, and this support points to one of the central conundrums that will plague any effort to preserve freedom of speech through legal standards purporting to distinguish speech that's permitted from speech that's not: No matter what the legal standard, someone will need to interpret and apply it. In the midst of the cultural adrenaline rush that closely follows the call for war, concepts such as "intent," "likelihood," "clear and present danger," or any other principle abstracted in legal language will always be vulnerable to the worried interpretations resulting from revved-up sentiments of duty, patriotism, paranoia, and revenge that naturally accompany the fight. There is a horrific and palpable reality to the burning hulks of steel sinking into the waters of Pearl Harbor, or the burning towers crashing into the streets of lower Manhattan, and the concept of "freedom of speech" is a sterile abstraction against the stench of fire and death.

STONE'S BOOK IS FILLED WITH PORTRAITS of the people most involved in the nation's struggle with freedom of speech in wartime, those pushing for censorship and those pushing back. The portraits are not pasteboards, but complex renderings replete with contradictions. Two striking examples are of Oliver Wendell Holmes and Learned Hand. Both were brilliant, highly respected American jurists, giants of the law. Both were, at points in their careers, great heroes of the free speech tradition as well as authors of judicial opinions that sanctioned oppressive censorship. And both men seemed to migrate during the course of their long tenures on the bench.

In the case of Holmes, the migration was from censor to emancipator. Hand moved in the opposite direction, starting as one of the first courageous free speech champions, but later formulating a position in Dennis v. United States that resulted in one of the most oppressive defeats for freedom of speech in American law. In a series of cases arising from World War I protests, Holmes wrote opinions for the Supreme Court affirming the convictions of protestors. Although he crafted the famous "clear and present danger" test—a standard that seemed on its surface to be protective of freedom of speech, by seeming to emphasize that for speech to be curtailed the "danger" posed by it must be both obvious ("clear") and immediate ("present")—Holmes pressed the test into the service of censorship, not freedom.

In Schenck v. United States, the 1919 case in which Holmes first articulated the test, he said explicitly that freedom of speech was less free during wartime, thus justifying his decision to send Schenck to jail. Holmes wrote, "When a nation is at war many things that might be said in time of peace are of such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." The opinion in Schenck was an exercise in balancing national security against freedom of speech, with the balance tilted strongly toward security. Like John Adams and Abraham Lincoln before him, Holmes seemed to believe that, in wartime, it is better for America to err on the side of suppression than freedom.

And then Holmes changed. We don't know exactly what precipitated the change, but we do know that a "round robin" of correspondence in which Holmes, Hand, and others participated led Holmes to have sober second thoughts. In his famous dissent in Abrams v. United States, Holmes railed against the conviction of a World War I protester on facts that closely paralleled cases such as Schenck, writing with soaring eloquence "that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Holmes reached the view that meaningful protection of freedom of speech required more than merely "balancing" national security against liberty. More stalwart protections were required, even for words "fraught with death," unless an emergency required an immediate response in order to save the country.

Learned Hand started off ahead of Holmes in his solicitude for freedom of speech. In Masses Publishing Co. v. Patten, decided in 1917, Hand wrote a courageous opinion bucking the trend of the times, holding that a revolutionary journal, the Masses, could not be prosecuted under the Espionage Act. The Masses case enshrined Hand as an early free speech hero, but decades later Hand would play the villain. In Dennis v. United States, decided in 1951, Hand wrote an appellate opinion affirming the convictions of American Communist Party leaders for advocating the violent overthrow of the U.S. government at a time when the country's anti-communist hysteria was at a fever pitch. The Supreme Court followed Hand's lead, with Chief Justice Fred Vinson's plurality opinion adopting Hand's cost-benefit approach to solving free speech conflicts, on the grounds that the test was "as succinct and inclusive as any . . . we might devise."

Under Hand's approach, a court "must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The court is first to calculate how dangerous the speech is—a calculation with a gloss of mathematical exactitude because the "gravity" of the potential harm is "discounted it by its probability." Imagine a 1,000-point "danger" scale. A catastrophic loss, such as a terrorist attack's destroying a piece of Manhattan or Washington, D.C., might score a full thousand points. If the probability that the speech inciting such an attack would actually cause such a harm is only 10 percent, the "discounted" danger score would be 100 points. Hand would have us first make this danger-discount calculation, and then weigh the result against the invasion of freedom of speech.

Hand's formulation had many shortcomings, as Stone points out. Once you posit a terrible loss, society may not have the gumption to tolerate even speech that has only a minuscule probability of causing the loss. And assuming you could make the "danger calculation" with any accuracy, how could you weigh the danger against the value of freedom of speech? In almost all instances speech would lose the contest, for it will seem a sterile abstraction, while the danger seems tangible as well as terrifying.

THE STORY OF HAND AND HOLMES gives this debate a human face. These men were both legal heroes, both patriots, both ardent believers in the role of courts as guardians of civil liberties. That two conscientious American leaders might be pulled in such opposite directions by history and experience ought to be enough to knock the cockiness out of any of us. These questions are not easy. Yet if the questions are not easy, they are not overwhelming. Patterns emerge from the historical account, and in those patterns we may find clues to the better views. In Stone's history of America's experience with free speech in wartime, two overarching themes emerge. The first has to do with the idea of progress. The second has to do with the imperative for freedom.

Stone contends that American history has contained a march of progressively larger and larger respect for freedom of speech in times of war. From the Revolution to the present, in war after war, it's a story of erratic yet incorrigible emancipation. Civil liberties in general and freedom of speech in particular may have been assaulted in response to the September 11 attacks, but the assault was far from those in the period of the Alien and Sedition Acts, or the Civil War, or World War I, or McCarthy-era hysteria over communism.

For all the acute debate in America in the aftermath of September 11, the war on terrorism, the wars in Afghanistan and Iraq, and the alleged overkill of the USA Patriot Act, the country's modern debate assumes large measures of freedom for vitriolic dissent. Americans continue to struggle with the balance between freedom and security, but the fulcrum in that balance has moved dramatically toward freedom. No serious political or cultural traction would exist today for a program of mass prosecution of Americans who expressed opinions critical of foreign policy and the war efforts, and it is unthinkable that our courts would countenance such hysteria. The shameful episode of the internment of Japanese-Americans during World War II is not likely to be repeated.

Yet as Stone points out, echoing insights of the scholar Mark Tushnet, though Americans may be capable of learning not to repeat the exact mistakes of the past, this does not inoculate us against making new mistakes that reflect the same dark impulses. While we did not repeat the mistaken policy of mass internment of American citizens, we did detain more than a thousand non-citizens without meaningful due process. While the government did not engage in the indiscriminate arrest of protestors, the country did invite an unprecedented regime of electronic eavesdropping, surreptitious surveillance of religious and political organizations, and clandestine searches.

Even so, however, reading Stone's book strengthened my faith in the positive momentum of the American civil liberties wheel, and so has recent history. After September 11, most people in America accepted the need for sterner measures to protect national security. At the same time, many Americans also thought the Bush Administration went beyond what was needed or appropriate in the sacrifice of civil liberties. The argument for freedom is constantly being made in this country, and despite the persistent setbacks, it is constantly gaining ground.

And here lies the importance of the second major theme of Stone's book: an argument for freedom, which materializes cumulatively from the historical narrative. During perilous times, the argument goes, we are most in need of resilient protection of civil liberty. Again, it's of ancient vintage. John Milton made it in his Areopagitica in 1644. "When a City shall be as it were besieg'd and blockt about," he wrote, "then the people, or the greater part, more than at other times, wholly tak'n up with the study of highest and most important matters to be reform'd, should be disputing, reasoning, reading, inventing, discoursing, ev'n to a rarity, and admiration, things not before discourst or writt'n of."

Efforts by military leaders to engage in spin control over events on the battlefield are as old as warfare itself. Propaganda and disinformation confuse the enemy, boost the morale of troops in the field, and steel the resolve of citizens at home. But no topic of public discourse in our society is more vital to self-governance or more intensely riveting to the individual citizen than national security. There are no matters of greater moment to a nation than decisions over war and peace. The outcome of debate over them may decree the expenditure of hundreds of billions of dollars, may cost the lives of hundreds of thousands, and may determine the survival of the nation. It is the ultimate topic for freedom of speech.

Rod Smolla is the Dean of the University of Richmond's T. C. Williams School of Law.

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