Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism
Advocates of the suppression of free speech during wartime argue that criticism of a war weakens the public's support for the war effort and emboldens the enemies of the United States. Speaking at a Division of United States Studies-sponsored discussion of his Perilous Times, Prof. Geoffrey Stone focused on the difficulties American leaders seem to find in sustaining a war effort without infringing upon the liberties of those exercising their constitutional right to question the war.
Presidents throughout U.S. history have sought to curtail criticism of government policies and leaders during wartime. In 1798, for example, John Adams pushed for passage of the Alien and Sedition Acts when this country faced the possibility of war with France. During the Civil War, Abraham Lincoln supported the use of military tribunals to punish speech. Similarly, during World War II, Franklin D. Roosevelt chastised the Attorney General for not charging the war's critics with sedition.
According to Prof. Stone, however, "some of the most repressive legislation with respect to free speech" in the nation's history was the work of Woodrow Wilson. As a scholar at Princeton University, Wilson had written that the best approach to criticism of a war was to allow unfettered debate. Wilson the president, however, did not heed the advice of Wilson the scholar. Wilson was reelected to the presidency in 1916 on a platform of having kept the United States out of war. Nonetheless, when German submarines attacked and sank several U.S. ships attempting to trade with England and France, Wilson demanded that Congress pass a declaration of war. He soon faced the challenge of galvanizing the public behind a war which much of the country did not see as a direct threat to the U.S. Insistent that dissenters not only impeded the war effort but also demonstrated their disloyalty to the nation by doing so, Wilson had his administration create the nation's first public propaganda machine. The federal Committee for Public Information produced a flood of editorials, letters, and speeches intended to generate hatred of both Germany and critics of the war.
To suppress criticism even further, Wilson sought aggressive censorship legislation. He asked Congress to draft what became the Espionage Act of 1917, making it a crime for anyone to interfere with the war effort through acts such as denouncing the draft. Even this was not enough for Wilson, who pushed passage of the Sedition Act of 1918, which imposed heavy penalties on anyone convicted of criticizing the Constitution, the government, the military, or the flag. The approximately 2,000 people who were convicted under the Sedition Act included, for example, citizens such as Rose Pastor Stokes and Eugene Debs, each of whom was sentenced to10 years in prison for speeches criticizing the government's motives for going to war. "Woodrow Wilson set the tone," Prof. Stone declared, "of an utter intolerance for dissent and disagreement." The courts did no better, as the Supreme Court upheld the convictions of those convicted under the two laws.
Following the war, support for the First Amendment, which had been buried in the fervor of the war effort, began to reemerge. Although the Espionage Act remains on the books today, Congress repealed the 1917 Sedition Act in early 1920. In 1921, Woodrow Wilson offered clemency to most of those convicted under the Sedition and Espionage Acts. The Supreme Court eventually overturned all of its Sedition and Espionage Acts decisions. The historic pattern of regret for the suppression of wartime speech, however, has not illuminated the conduct of later wartime presidents.
Praising Stone's "superb book," Prof. Jeffrey Rosen continued the discussion by arguing that the political arena has been far more supportive of speech than has the federal judiciary. Today's permissive speech doctrines, he asserted, were codified by the courts but not created by them. Rosen credited the abolitionist Republicans rather than the judiciary with being the progenitors of the modern arguments for speech. Agreeing with Rosen, Ronald Collins noted that even such giants of American speech law as Oliver Wendell Holmes and Louis Dembitz Brandeis repeatedly voted to uphold the World War I convictions of those prosecuted for speech. That history, Prof. Stone commented, suggests that like all other civil liberties, free speech cannot exist in the absence of a public committed to its continuation. Unless each new generation is educated about the rationale for speech and its centrality to democracy, speech will be repeatedly imperiled – particularly in times of war.
Drafted by Acacia Reed and Philippa Strum
Philippa Strum, Director of U.S. Studies (202) 691-4129