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The New York Times November 7, 2004 'Perilous Times': War of Words By CHRISTOPHER HITCHENS PERILOUS TIMES Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism. By Geoffrey R. Stone. llustrated. 730 pp. W. W. Norton & Company. $35. OWEVER seductively it may be phrased, the offer of an exchange of liberty for security has a totalitarian hook sticking out of its protectively colored bait. Societies that make the trade have very often ended up with neither liberty nor security. But on the other hand (as Fay Wray entitled her own memoir of monstrousness in New York) totalitarianism can present a much more menacing threat from without. I have heard serious people describe the reign of our pious present attorney general as fascistic. Given that jihadist armed forces could still be in our midst, that might be looking for fascism in all the wrong places. What this argument has long needed is the discipline of historical perspective, and Geoffrey R. Stone, a professor of law and former dean at the University of Chicago, has come forward at precisely the right moment with an imposing book that offers precisely that. In ''Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism,'' he shows how the United States has balanced (and unbalanced) the scale of freedom versus the exigencies of self-defense. And he also demonstrates a kind of evolutionary learning curve, whereby the courts have distilled some of our dearly bought experience. America's first experiment with a national-security state was at once its most unambivalently disastrous and its shortest lived. The Alien and Sedition Acts of 1798 were, to begin with, flagrantly partisan. The easiest proof of this is the exemption of the vice president from the list of official persons who could be calumniated, simply because the anti-Federalist Thomas Jefferson was at that time the holder of the office. They also vastly exaggerated the threat from revolutionary France and flatly negated the spirit and letter of the First Amendment. Editors were imprisoned; foreign-born friends of America like Thaddeus Kosciusko had already felt compelled to leave the country. So great was the eventual revulsion from this that, six and a half decades after the acts were repealed, President Lincoln had no choice but to read the most viperous editorials in the Democratic press, describing him as a demented tyrant bent upon a bloody war of self-aggrandizement. Stone's pages on this period are completely absorbing. He shows that Lincoln did imprison or fine the occasional editor, but with scant relish for the business, and that wartime censorship was so easily evaded as to be no censorship at all. The crisis came, rather, over conscription and the concomitant suspension of habeas corpus. Lincoln's secretary of state, William Seward, was widely quoted as having told the British minister: ''I can touch a bell on my right hand and order the arrest of a citizen in Ohio. I can touch the bell again and order the imprisonment of a citizen of New York, and no power on earth but that of the president can release them. Can the queen of England, in her dominions, say as much?'' This boastful inversion of the original purposes of the American Revolution may have been overstated for effect, but not by much. Lincoln did order nighttime arrests, and did ignore Chief Justice Roger B. Taney's ruling that a president had no power to deny habeas corpus. Taney's position is that the Constitution reserves such extreme measures only for the Congress. If a president wants to assume such powers, he cannot do so without at least resorting to the courts, which Lincoln steadily declined to do. Instead, he rather demagogically demanded to know why the law should force him to shoot ''a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert.'' The cause celebre here became that of Clement Vallandigham, a leader of the Copperheads, northern Democrats sympathetic to the South, who spiritedly opposed both conscription and emancipation. He was arrested, then exiled from the Union. I have never seen it argued that this measure had any influence on the desertion rate (improbable in any case, given that the thought of the firing squad probably had a greater effect on the mind of the simple-minded soldier boy). The best that can be said is that Lincoln seems to have sensed the absurdity of his own logic, and regularly urged local commanders not to embarrass him by locking up people who merely uttered anti-Union sentiments. The next two wartime crises involved the killing of foreigners rather than Americans, and in both cases the ''loyalty'' of ethnic or national minorities was in question. During World War I, the persecution of German-Americans put H. L. Mencken in a permanent state of alienated rage, while Woodrow Wilson outdid Lincoln in vindictiveness by refusing to release Eugene V. Debs, America's finest socialist, until well after the war was over. Debs had been imprisoned for urging Americans to take no part in an imperialist war; but against recent immigrants, mainly Jews, the weapon of deportation was also employed. It's from this period that we have Justice Oliver Wendell Holmes's notorious observation about shouting ''fire'' in a crowded theater as a symbolic limitation on free expression. (The antiwar forces might have retorted that the theater actually was on fire.) Holmes, however, became disgusted by some of the excesses of authority, and made some important rulings the other way. In the run-up to World War II, Franklin Roosevelt swung out against the antiwar isolationists with Lincoln's vigor, denouncing Charles Lindbergh as a second Vallandigham. The trial of William Dudley Pelley, leader of the fascist Silver Shirt militia, provided the war years' test case. Pelley had taken the Nazi side, proclaimed an administration conspiracy to exploit Pearl Harbor and announced that Americans were being drafted to fight a Jewish war. He was sentenced to 15 years in prison and served 10, which meant that he also stayed inside until after the war was over. (Stone does not notice the irony that he served his time in the penitentiary at Terre Haute, Ind., birthplace of Debs and today the site of his museum.) In a fascinating discussion of the case, Stone shows that Pelley was right in one respect about Pearl Harbor: the Roosevelt administration really did cover up the extent of the damage inflicted by the Japanese. Official statements described burned and sunken battleships as still afloat. Stone also provides a meticulous discussion of the internment of the Japanese-American population, even though this was not exactly a ''free speech'' question. If this argument ran in a straight line, one would expect the United States, after one civil war and two global conflicts, to have many fewer liberties than it had in the 1850's. But the effect is as much dialectical as it is cumulative, if not more so. As Stone demonstrates, the courts have made concessions based on precedent. In the Pelley case, a court of appeals reconsidered the Espionage Act of 1917, under which Pelley had been charged, to refine and dilute the definition of subversive speech. There was a line to be observed, demarcating the propagation of deliberate falsehood from the circulation of disputable opinions. By the time the United States was next divided in wartime, during the Vietnam years, the courts were ready to rule that speech and action should in effect be considered separately. In one case, it was ordered that Julian Bond, the charismatic young civil-rights campaigner, could be seated in the Georgia legislature despite his opposition to the draft. In another, it was decided that an Ohio Klansman named Clarence Brandenburg should be allowed to go on yelling his head off. So the cases of Bond and Brandenburg are now cited as joint precedents and, as Stone points out, there have been no federal prosecutions for speech or ''incitement'' since Sept. 11, 2001. It might be too soon, not to say too complacent, to make a case for American exceptionalism in this regard. And Stone does not take up the peacetime panic after the 1995 bombing of the Federal Building in Oklahoma City that produced the Anti-Terrorism and Effective Death Penalty Act, which is still employed for prosecutions and deportations. There was enough law already on the books, you might say, before the passage of the Patriot Act. And surely one central part of that act -- the correct decision to allow the sharing of intelligence between foreign and domestic agencies -- could have been made for its own sake. One closes this admirable book more than ever determined that the authors of the Constitution were right the first time, and that the only amendment necessary might be a prohibition on the passage of any law within six months of any atrocity, foreign or domestic. CHRISTOPHER HITCHENS is a columnist for Vanity Fair and a visiting professor of liberal studies at the New School University. His new collection of essays, ''Love, Poverty and War,'' is forthcoming this winter. -- ----------------- R. A. Hettinga <mailto: [EMAIL PROTECTED]> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
