Comments based on a reading of Perilous Times by Geoffrey R. Stone
- By Bruce McKinney
An examination of the first amendment in times of crisis.
By Bruce McKinney
The relationship between the law, leadership and circumstance is a complex one. Americans would like to believe that the constitution is a firm, yet flexible, document that, in the hands of the Supreme Court, is relentlessly reinterpreted to encompass possibilities the original framers could only have anticipated as principles. That the tide that ever carries the nation to higher levels of legal principles might also recede is a possibility ignored in the civics texts we waded through on our way to becoming educated. But recede it does and a book I've recently been reading brings home the fragile nature of our democracy through a review of those times when the legal authorities lost their way. The book is Perilous Times, [subtitled Free Speech in Wartime], by Geoffrey Stone. It is a cautionary tale that will not go down easy with folks that take a simple view of democracy.
It covers, in great detail, how free speech has been handled in the United States by legislators, legislatures, the executive and judicial branches in times of war and upheaval. More specifically it traces the evolution and development of the first amendment from a pale concept on paper at the nation's founding to the fundamental shield it is today. The first amendment guarantees every citizen the right to have an opinion and to express it without fear of legal reprisal. Ah, as if it was that simple.
Here is what the first amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This assumes that the interpreters will be level headed and fair. When they are not the first amendment becomes an empty promise. The fundamental issue has been whether the President and/or the legislature, can in circumstances they deem appropriate suspend, reduce or revoke freedom of speech. In 1798 the Federalist controlled Congress passed and John Adams, a Federalist President, signed two laws: the Alien & Sedition Acts. The first law extended residency requirements for citizenship from 5 years to 14 thereby denying Thomas Jefferson and his Republican party the votes of a group that overwhelmingly supported them. The second gave the President the right to imprison or deport aliens suspected of activities posing a threat to the national government. Most controversial was the Sedition Act which was devised to silence Republican criticism of the Federalists. Its broad proscription of spoken or written criticism of the government, the Congress, or the President virtually nullified the First Amendment freedoms of speech and the press. Suspicion, as a basis for deportation or imprisonment, in time proved untenable because it denied the suspect the right to defend themselves.
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Comments based on a reading of Perilous Times by Geoffrey R. Stone
- By Bruce McKinney
Endorsements from many prominent intellectuals.
During the Civil War Lincoln suspended the writ of habeas corpus that "enables an individual who has been detained by government officials to seek a legal determination of the legality of his detention." Therefore no court reviewed them. Lincoln's defense was that, in Civil War, the enemy passes among you and must be separated. When the courts ruled against him he ignored them. This is the only instance cited in this book where repression does not seem to have been the primary motivation.
During World War I paranoia gripped the nation. President Wilson sought repressive measures in 1917 [The Espionage Act] to legislate against disloyal expression. He specifically sought to muzzle the press. In 1918 further legislation made it possible for organizations such as the American Protective League [with its 200,000 members] to file reports of legal violations on the basis of "hearsay, gossip and slander." Prosecutions would later be brought against those who opposed the war and they would be sent to jail for years or deported. When there was "clear and present danger" the first amendment was sacrificed.
In the years before World War II there was a sense that it had not been necessary or appropriate to reduce first amendment rights and the expectation seemed to be that, should war come again, no such measures would be anticipated. Japanese-Americans soon learned otherwise. In California in particular, local demagoguery fueled outrage over Pearl Harbor leading the United States government to intern more than 120,000 Japanese-American citizens. No crimes were ever proven and during 1944 such programs were ended. This was simply racism. No similar programs were enacted against Germans or Italians.
In the waning days of the war the Soviet Union emerged as a direct threat to the United States. The Republican Party, long out-of-power, sought to portray Democrats as soft on communism and Truman responded by creating a loyalty program in 1947 that laid the basis for the anti-communist hysteria that would grip America in the next decade. In 1950 Joseph McCarthy, a new senator, emerged as a member of the House Un-American Activities Committee and began to make a name as an anti-communist firebrand. Under his emerging demagoguery over the next four years thousands of people were subpoenaed, often based on hear-say and other unsubstantiated accusations, to defend themselves. For many their way out was to implicate others. As a consequence thousands of people, most of them innocent, were drawn into a net of accusation by implication and betrayal. There were no trials. McCarthy simply made accusations, craven employers fired and friends disassociated. It was a period of extraordinary injustice. Bombast ruled and people who knew better remained silent. The Supreme Court had been expected to rule against the HUAC but did not. It would not be until 1957, under a reconstituted Supreme Court, that the Justices would reassert the primacy of the first amendment and bring to an end this shameful period. McCarthy was condemned by the Senate in the fall of 1954 and died of acute alcoholism in 1957. For a period of five years the first amendment rights of all Americans were in effect suspended.
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Comments based on a reading of Perilous Times by Geoffrey R. Stone
- By Bruce McKinney
Joe McCarthy, democratic principles under attack.
In the 1960s the Vietnam War would again test the first amendment. The government sought to fight a war without a declaration and sought to pay for it without direct appropriations. Civil unrest, which was fiercely opposed by the government, ultimately brought a succession of cases to the Supreme Court that it used to confirm the primacy of the first amendment and the rights of individuals to hold different views and not be prosecuted or persecuted for them. In this way, the Supreme Court, which had failed miserably to uphold the first amendment rights of individuals during the McCarthy era, reasserted its constitutional right and obligation to uphold the law and to mold it in changing times.
Where does this leave us today? The world is much changed since the American flag came down in Saigon on April 30th, 1975. Today we have a determined President, who seeks, in the name of Iraqi liberation, to bring (or impose) his vision of freedom to the rest of the world. He was either mistaken or misleading in his explanation of weapons of mass destruction to justify his invasion, and he now seems willing to enlarge a war that may already be lost by sending more troops and even suggesting that an attack on Iran is not off the table. He seeks to bring the American democratic model to a people who have shown little interest in it. Democracy is a stage and there is no shortcutting the internal evolutionary process that makes democracy inevitable when the time is come but impossible if it has not. Today, in America, first amendment rights are holding and later this year protests to end this war may begin in earnest. Then, as has happened so many times before, will government push to suppress the right of protest?
Develop your own views by reading this very compelling history.
Perilous Times
By Geoffrey R. Stone
W.W. Norton Company
730 pages including extensive footnotes
$23.80 on Amazon and available at bookstores everywhere
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