BY ADINA LEVINE
Geoffrey R. Stone, author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to The War on Terrorism, spoke at the Dean’s Forum on November 15th about the civil liberties, specifically free speech, that the nation abandons during wartime. Beginning with the Sedition Acts of 1798, Stone established a theme of wartime, suppression of civil liberties, and then reaction – that consistently recurs in our history.
“I think that these responses are very deeply ingrained in human nature,” asserted Stone. “One part is that war itself inevitably generates great passion. We are sending off neighbors, friends to fight and possibly to die and no one wants to die for an unjust cause, so it tends to become kind of emotional. And another thing that compounds this is fear. It becomes quite common for people to begin eyeing the person next to them and wondering is he on our side or their side.”
This pattern of revoking civil liberties during wartime can thus come from the bottom-up, as when the people’s individualized passions and fears cause them to pressure their legislators for assurances. For example, Stone cited both the Japanese internment camps and the Patriot Act as legislative responses to the whims of the people.
“The people want to see the government do something, and elected officials respond very quickly,” observed Stone. “It produced an environment where legislators thoughtlessly take action, because to do otherwise might have lost them their jobs.”
On the other hand, there are times in history where the suppression of free speech comes from the government, such as the 1798 Sedition Acts and McCarthyism. At such a time, the legislators “manipulate the way people feel,” and prey on the fears of war as an excuse for accomplishing other governmental objectives.
“The anxiety about communism became critical for Republicans who were seeking to regain political power after 16 years of being out of the White House,” asserted Stone. “Playing the red card turned out to be very effective. [They said:] There are people we cannot trust, most often liberals, now that the Soviet Union is our enemy, and the Democrats are not protecting you against them.”
The strategy worked, Stone noted, and the Republicans reemerged in Congress during McCarthyism.
“It really wasn’t about communism,” asserted Stone. “It was a way of motivating the American people. People are vulnerable because of the pressures involved in wartime, and politicians exploit this.”
Since history has proven that it is a reemerging theme to take away civil liberties during wartime, Stone asserts the need to have structures in place before a crisis occurs in order to protect those liberties.
“It’s very hard when you’re in the middle of these situations to assess them wisely,” commented Stone. “Once you are in a crisis like this, it’s very difficult to exercise good judgment, and for a nation, it’s even more difficult. If you want to respond sensibly, you have to do it in advance rather than waiting until you’re in the middle of it and saying that we’ll figure it out then.”
It’s a common misconception, according to Stone, to underestimate the power of established laws during wartime.
“We assume that courts will not make any difference, that the President will do whatever he wants when it comes to wartime, and the law be damned,” Stone stated. “But there is not a single instance in this history where a president supported any action which was clearly unconstitutional under existing law.”
Therefore, Stone believes it is important to set procedures in place before crises in order to prevent the suppression of civil liberties.
“One way the supreme court has, over time, tried to consciously deal with this is to overprotect speech in times of calm in order to prevent underprotecting speech in times of crisis,” asserted Stone.
Another option to ensure the existence of free speech during wartime is to have a set position in the government of a cabinet member dedicated to protecting free speech.
“[You should have] officially or unofficially, a member of the Cabinet who is committed to civil liberties,” Stone suggested. “In the Bush administration, it would be comfortable to know that there is someone who actually cares about civil liberties, and loses sleep over them. The absence of that should give all of us considerable pause.”
Using “free speech” and “civil liberties” almost interchangeably, Stone nevertheless believes that there is a significant distinction. The suspension of civil liberties, if temporary, can be regained without much of a net loss, according to Stone.
“One of the things that’s often said for restricting civil liberties during wartimes is that we ask people to make incredible sacrifices during wartime – to ration food, to give up lives – so why not give up civil liberties as well?” Stone questioned. “One mantra is that once you lose civil liberties, they’re gone forever. But in fact, history proves the opposite. In each episode so far, we have recognized that we behave badly and we end up in a better position than we were before. The general historical trend, though bumpy and uneven, is a progressive trend.”
The repression of free speech, however, can dramatically impact the nation’s ability to make correct decisions, according to Stone.
“I think free speech is different in this fundamental sense,” he asserted. “Unlike other rights, such as the rights not to be detained in a concentration camp, free speech is not a personal right of the individual, but a right about how we govern ourselves. We not only deny the individuals the right to say these things but we make it impossible for society to decide as well. If you can’t have free speech in war time, then you can’t make good decisions in war time. Which can’t be true because that’s the time you want to make the right decisions.”
Stone is the Harry Kalven Jr. Distinguished Service Professor of Law at the University of Chicago, and was dean of the law school from 1987 to 1994, and provost of the university from 1994 to 2002. He recently represented Fred Korematsu in an amicus curiae brief in the Supreme Court of the United States in the Guantanamo Bay case.