It’s one thing to cry “fire” in a crowded theater. It’s another to cry “surrender” in the face of an enemy, as this broadly ranging survey of historical laws attests.
There are many good reasons for suppressing certain speech in wartime, writes Stone (Law/Univ. of Chicago): for instance, “a dissenter may disclose information that is useful to the enemy, such as invasion plans or the vulnerabilities of the navy”; “antiwar dissent may strengthen the enemy’s resolve and make it more difficult for the nation to achieve victory or negotiate a just peace”; or, provocatively, “dissent may persuade people to vote for political candidates who promise to end the war.” Yet laws regulating the expression of such sentiments in wartime—which takes up about 20 percent of our nation’s history, he reckons—tend to be made by Congress in a mood of war fever, with predictable results: “The fear, anger, and fervent patriotism engendered during a war naturally undermine the capacity of individuals and institutions to make clearheaded judgments about risk, fairness, and danger.” Thus, he notes, the so-called Patriot Act, which “smuggled into law several investigative practices that have nothing to do with fighting terrorism, but that law enforcement officials had for years tried unsuccessfully to persuade Congress to authorize.” Alas, Stone shows, Congress is all too easily persuaded to abandon American principles for political expediency: “Most often, Congress has responded to public fears in wartime with draconian and even savage legislation.” Thus the suspension of habeas corpus during the Civil War, the promulgation of the Sedition Act after the Revolution, the rise of the HUAC during the Cold War, and the deployment of various secret-police agencies during the Vietnam era. In this long, literate study, Stone addresses six major episodes that have gnawed away at the First Amendment, closing with an examination of our fear-ridden age and its erosive propensities.
Most timely, and of wide interest to civil libertarians and students of legal history.