First Amendment under fire

Perilous Times: Free Speech in Wartime -- From the Sedition Act of 1798 to the War on Terrorism
By Geoffrey R. Stone
Norton, 730 pp., illustrated, $35

Geoffrey R. Stone's encyclopedic narrative of free speech during wartime is a must-read for all who treasure the First Amendment. Scholarly in its depth, yet accessible to lay readers, ''Perilous Times" is a book for all times and places. Its author is among the most distinguished students and teachers of First Amendment law. Yet valuable as it surely is, its basic thesis is highly questionable.

Stone's central premise is that freedom of speech has always thrived in this country, except during wartime. As he puts it: ''The United States has attempted to punish individuals for criticizing government officials or policies only during six [wartime] episodes in our history." He implies, therefore, that governmental censorship has been episodic and limited to wartime, and that freedom of speech has been the norm during the remainder of our history as a nation. Although his historical assertion may be literally accurate, it hides as much as it reveals. The fact is that governmental censorship has been the norm through most of American history, and robust freedom of speech is a relatively recent development. If this is true, how then can Stone's statement be literally accurate? Because most of the censorship emanated not from the US government, but rather from state governments. This is the important part of the story that Stone does not tell.

By focusing on federal censorship and on wars (which are fought by the federal government, not the states), Stone paints an incomplete canvas of the status of free speech in America in peacetime. By not telling us much about state efforts to punish individuals for exercising their freedom of speech in peacetime, Stone exaggerates the role of war in the history of American censorship. He also diminishes the roles of other factors, such as the growing power of the media, the changing nature of federalism, the expanding scope of judicial review, the diversification of our polity through immigration and enfranchisement, and the increasing recognition of the dangers of censorship in pushing the envelope of free speech from its narrow understanding in the late 18th century to its broader contemporary reach.

Let me begin my criticism where Stone begins his historical account: with the Alien and Sedition Acts enacted by the Federalists during the presidency of John Adams. Stone tells of the conflict between the Federalists and the Republicans as if it were entirely about the scope of free speech during a feared war with France. But it was as much about the scope of federal, as distinguished from state, power -- including most particularly the power to censor. Stone acknowledges, but only in a footnote, that the Republican Thomas Jefferson ''worried about the licentiousness of the press" as much as the Federalists Adams and Alexander Hamilton did. Jefferson favored the censorship of newspapers, but only by the states. When he became president, and after the fear of war had ended, ''prosecutions were instituted in the state courts against Federalists . . . for seditious libel [against] the Chief Magistrate." (Quoted in my book ''America on Trial," 2004.)

Between the wartime censorship of the Alien and Sedition Acts and that of the Civil War -- a period that Stone does not review -- there was pervasive governmental censorship of the press by many states. The same is true in the periods between other wars. For example, Stone has an illuminating chapter on the censorship that accompanied World War I. In that chapter, he describes the evolution of Justice Oliver Wendell Holmes's views with regard to freedom of speech during that short wartime period. He rightfully criticizes Holmes's famous example of ''falsely shouting fire in a theater," and especially its false analogy to handing out leaflets protesting the draft. What he does not tell us is that four years earlier -- before the United States even entered the war -- Holmes affirmed one of the most absurd and trivial state censorship prosecutions in history.

In Fox v. Washington, an editor was sentenced to jail for writing an editorial titled ''The Nude and the Prudes" in a community newspaper. In this piece, the editor criticized ''opponents of nude swimming." He was convicted under a Washington State law making it a crime ''to encourage or advocate disrespect for law." With an absolutely straight face, the great Holmes concluded that the ''article encourages and incites" -- albeit ''by indirection but unmistakably" -- a persistence in what ''we must assume would be a breach of the state laws against indecent exposure." As such, it is not protected by the Constitution. When criticized for his cavalier attitude toward freedom of speech, Holmes told Judge Learned Hand that a state should be as free to protect itself against dangerous opinions as against the spread of smallpox: ''Free speech stands no differently than freedom from vaccination."

Many similarly repressive cases can be found in the state reports during peacetime, especially in the context of efforts by labor unions to organize and express opposition to corporate power. State and city censorship boards decided which motion pictures could be shown, school boards censored the teaching of evolution, and governors declared martial law to suppress labor picketing and strikes. Freedom of speech was not thriving in America between the wars until Justice Louis Brandeis -- along with several academics -- persuaded Holmes to change his cramped views regarding it. The dissenting opinions of Brandeis and Holmes eventually became the majority view of the Supreme Court, but even more important, they became the dominant view among influential Americans.

The end result is that there is far more freedom of speech today -- even during the current war against terrorism -- than there was in periods of peace during the 19th and early 20th centuries. The history of freedom of speech in this country has been on a trajectory moving in a clear direction toward greater freedom rather than an episodic contraction of such freedom during wartime and a return to full freedom during peacetime. It is true that this trajectory has been slowed by wartime censorship, but even if we consider only wartime censorship, there has been considerably less of it during the Vietnam War and the current war than in previous wars. That is good news indeed. Will this trend continue if the war against terrorism becomes more intense? Here I cannot improve on Stone's final words in ''Perilous Times": ''And, so, we shall see."