November 7 , 2005
Stone talks free speech in wartime at Public Issues Forum
BY Michael terrazas
Those who believe we are living in the most repressive time in American history…don’t know much about American history,” said Geoffrey Stone, professor of law at the University of Chicago, to his audience in the Carlos Museum reception hall, Nov. 1. “But that doesn’t mean there aren’t threats.”
Stone was summing up the gist of his remarks as the featured speaker of the latest Emory College Public Issues Forum. Author of Perilous Times: Free Speech in War Time from the Sedition Act of 1798 to the War on Terrorism, he outlined eight separate instances where the U.S. government weighed national security against individuals’ constitutional rights and chose the former, sometimes in a very big way.
For example, Stone called the Alien and Sedition acts of 1798—pushed through by a Federalist Congress in support of Federalist President John Adams and justified by what Adams considered an imminent war with France—two of the more repressive acts in American history. History repeated itself 119 years later when Woodrow Wilson successfully urged passage of another Sedition Act in 1917, one that essentially made it illegal to publicly criticize any aspect of America’s war effort (including the military and the U.S. flag) in World War I.
“When we are at war, there are legitimate concerns about security, and it is reasonable to suggest additional steps to ensure security,” Stone said. “The challenge is to figure out when we’ve gone too far, when what we’re doing is not protecting the nation but subverting the political process.”
Some 2,000 people were prosecuted under the Sedition Act of 1917, Stone said, and the average prison term for convictions ranged from 10–15 years. Those were just two of the examples he pulled from the U.S. history books; he had six more, from Abraham Lincoln’s suspension of the writ of habeas corpus (eight times) during the Civil War to the internment of Japanese Americans during World War II, to McCarthyism in the early 1950s.
Indeed, measures like Wilson’s Sedition Act—and the fact that the U.S. Supreme Court initially upheld the law and its resultant prosecutions—make the current environment for political speech seem indulgent by comparison. This shift began sometime before the Vietnam War, Stone said, when the government shifted from criminalizing opposition speech to covertly surveiling its authors. During that time, the U.S. intelligence community (principally the FBI) assembled files on more than 500,000 Americans it considered “dissidents” or belonging to dissident organizations.
“None of this is as distant as it may seem,” he said. “Human nature being what it is, the same fears and forces of exploitation at work in these episodes will be at work whenever the nation is at war.”
And today is no exception. With the caveat that most of the current perceived infringements of constitutional rights have happened before, Stone said the administration of George W. Bush does stake out a position more extreme than any previous administration on one critical issue: the powers of the executive branch in wartime. Stone, who has filed briefs on behalf of “enemy combatants” being detained by the government for alleged terrorist activity, said the term itself has no basis in law or legal precedent, and no president in U.S. history has claimed the right to seize U.S. citizens, hold them indefinitely without bringing formal charges or affording them right to counsel, without informing their families and without any judicial review of the detention.
“I do not use this term lightly,” Stone said, “but when people refer to these as ‘Gestapo-like’ tactics, what are they saying? By definition, a Gestapo tactic is making someone disappear because someone in government has decided they should disappear.”