Free Speech and Censorship During Wartime: By JOHN DENVIR

Special to the Planet
Tuesday November 30, 2004

In this history of the American experience of free speech during war time, Geoffrey Stone explodes the myth that elite professors cannot write compelling prose. Stone’s narrative of the ups and downs of the First Amendment in times of national emergency is a gripping read, full of free speech heroes and villains, victories and defeats.  

Stone’s story spans from the 18th century to the current one; but while the wars change, the tensions between our commitment to free speech and democracy endure. The pa st and current problem is that, despite our national commitment to freedom of speech as a necessary part of the democratic process, many Americans instinctively feel that any criticism of governmental policy while American soldiers are at risk is simply t reasonous. Censorship during wartime is a popular political option. And this predilection towards intolerance is often encouraged and capitalized on by opportunistic politicians to the First Amendment’s detriment.  

Stone does an excellent job in describing the patterns that have re-occurred over two centuries and myriad conflicts. Often in the excitement of military crisis, censorship is imposed that we later recognize to be neither militarily necessary nor politically prudent. Everyone now agrees that the Alien and Sedition Act of 1798 and the Espionage Act of 1918 were free speech disasters, but of course when regret seems only to be felt in hindsight, it is not very reassuring to activists who wish to protest military policies in the present day.  

S tone points out that we better respected civil liberties in World War II than in World War I and outright prosecution for the expression of anti-war views was the exception not the rule during the Vietnam War. He attributes these facts to the growth of wh at might be called a “free speech” culture in America after World War I, led by the famous Supreme Court First Amendment dissents of Justices Oliver Wendell Holmes and Louis Brandeis.  

Yet ironically this growth of support for free speech values does not always result in less actual repression during times of war. Sometimes the problem is a failure of courage on the part of judges when free speech issues are raised in a time of national emergency. There sometimes seems to be almost a “national security” exception to the First Amendment.  

Secondly, in the Vietnam War when courts did restrict prosecutions for making statements critical of the war effort, government just moved to new forms of repression. Stone is especially good at telling the story of how the FBI, CIA, and Army, without Congress’s knowledge much less approval, compiled dossiers that would have done the KGB proud on 500,000 loyal American citizens. We still do not know the harm this massive secret government program to “neutralize and dest roy” the anti-war movement caused the individuals personally and the anti-war cause in general. For that matter, we don’t know if a successor program has been instituted after the attacks of 9/11 since the Bush administration prefers to do its business i n secret.  

Finally, sometimes good free speech doctrine is overwhelmed by the presidency’s ability to use its unrivaled access to the media to equate dissent with disloyalty. Most presidents succumb to this temptation, but few were as ruthless and effect ive as Richard Nixon during the Vietnam War. Nixon effectively linked anti-war speech to a patriotism deficit.  

Yet the problem remains. You need not be a media expert to know that it is not difficult for a savvy White House to use its media access and c ontrol over national security information to stunt criticism. As our culture becomes more media-oriented, the power of government propaganda becomes an increasing threat to the marketplace of ideas that the First Amendment is supposed to sponsor. Unfortun ately, this is an issue that current American First Amendment law does not even face, much less resolve.  

Most readers will expect Stone to draw lessons for the future from his riveting history of the past. He does devote a few pages to the post 9/11 wor ld, but his recommendations for change are less compelling than his history. Stone’s suggestions for reform are for the most part both abstract and non-controversial. He speaks little of the corrupting effects of government secrecy and propaganda and even appears to support some policies that severely restrict dissent. For instance, Stone would appear to approve a federal court’s acquiescence in New York City’s refusal to allow a giant anti-war rally in Central Park during the 2004 Republican convention o n the ground that the demonstrators might injure the grass. Millions for police protection, but not one penny for turf repair.  

But, to be fair, Professor Stone’s reticence on how the First Amendment should evolve to meet current and future national secu rity crises in no way diminishes the value of his compelling story of how free speech and fear have faced off in the past.  


John Denvir, a Berkeley resident, teaches constitutional law at the University of San Francisco Law School and is author of Democracy’s Constitution:Claiming the Privileges of American Citizenship.