“Perilous Times” Traces Roots of Imperiled Speech
By Richard Eadie
“Perilous Times: Free Speech in Wartime -- From the Sedition Act of 1798 to the War on Terrorism”
By Geoffrey R. Stone, Professor of Law, University of Chicago
Government suppression of speech and of the press has been an issue of litigation on these shores since long before the Constitution and the First Amendment. In 1735, John Peter Zenger had his famous confrontation with Gov. William Cosby, leading to one of the most well-known cases of press freedom and jury nullification.
Professor Stone takes us to the infancy of the First Amendment and reviews limits on speech and press imposed by presidents and congresses during times of war and fear of war, and discusses the court cases that emerged from these conflicts to shape our modern understanding. Stone looks at six separate periods of First Amendment challenges: from 1789 to 1801, the time of the Sedition Act of 1798; the Civil War; WWI; WWII; the Cold War; and the Vietnam War; before concluding with comments on the war on terrorism.
A benefit of this organization is that one can read each section independently, an advantage if you have difficulty in working straight through 557 pages of text that is at times slow going, though never uninteresting.
On one level, Stone gives us a history of the law of the First Amendment speech and press clauses, from the time when the only authority on the meaning of freedom of the press was Blackstone -- a decidedly royalist or federalist view -- through the Pentagon Papers and up to the war on terrorism.
Stone shows us the political struggles of presidents, notably Adams, Lincoln, Wilson, Roosevelt, Truman and Nixon, and their congresses, as they respond to the pressures of war, the need for security and the reality of dissent. He gives us a close-up look at many of the judges who were involved in key decisions: trial judges from Montana and North Dakota as well as justices of the Supreme Court, including Oliver Wendell Holmes and Louis Brandeis.
He gives particular attention to the career of Judge Learned Hand and his decision as a District Judge in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917). Judge Hand enjoined the postmaster general from interfering with the distribution of Masses, a decision that Stone says cost Hand a pending promotion to the Second Circuit Court of Appeals, a promotion that he did attain several years later. As to Masses, the Second Circuit reversed Hand, the publication went out of business and several members of its staff were indicted for conspiracy to violate the Espionage Act.
Stone examines the circumstances that led to the internment of Japanese-American citizens during World War II, including a closer look at the persons involved in the executive decision and the cases that followed: Gordon Hirabayashi, Fred Korematsu and Mitsuye Endo, as well as the post-war reflections, and regrets, expressed by Supreme Court justices and others.
Stone concludes, “. . . [W]e seem to have reached consensus on two key propositions: The Constitution applies in time of war, but the special demands of war may affect the application of the Constitution.” And the central question posed by Stone is how to protect constitutional rights “while still allowing government to respond effectively to a crisis.”
A state court in this corner of the United States may never confront a Sedition Act case, but the book is informative and valuable for us as well and it left me with a deeper understanding and appreciation of the First Amendment, freedom of speech and freedom of the press. Access to government information, as with the Pentagon Papers, is a regular subject of litigation. Our Washington Supreme Court recently addressed the issue of public access to court documents in Rufer v Abbott Laboratories, et al. [Ed. note: Please see page 5 for more on the Rufer case.] On-line or “remote access” to court documents is the subject of intense interest at the moment as the form of General Rule (GR) 31 is debated.
Secrecy, Stone observes, is the ultimate form of regulation. The background and perspective he provides on these issues and the private statements and pictures of many of the important figures involved make “Perilous Times” an engaging and valuable book -- well worth your time.
Richard Eadie is the Presiding Judge of the King County Superior Court.
