Lessig Blog Archives

Thanks, again, for all the terrific comments on the O’Reilly show. I’ve learned a lot from them. I may write an op-ed about the experience. But for now, a few words about Vietnam.

By the time we got to 1968, it was no longer possible to imagine a criminal prosecution of Gene McCarthy for opposing the war. Constitutional law and American culture had progressed to the point that it would have been unthinkable for the Johnson or Nixon administration to have treated antiwar leaders the way we once treated people like Matthew Lyon, Clement Vallandigham and Eugene Debs. But this doesn’t mean the government couldn’t find other ways to attack dissent. Prosecutions for draft-card burning, flag burning, and the public use of offensive language were frequently directed against antiwar protestors, not because the “crimes” were worth punishing, but because it was a way of “getting” those who offended government officials.

More important, the government initiated an aggressive series of undercover programs — COINTELPRO (“counterintelligence programs) designed to “expose, disrupt, and neutralize” the antiwar movement. FBI agents and confidential informants infiltrated antiwar organizations at every level to gather the names of those who opposed the nation’s policy. When all was said and done, the government had compiled dossiers on half-a-million Americans. But the goal was not just to create files. It was to act against those who had the temerity to challenge the government.

The Nixon administration launched IRS audits of those who contributed to antiwar organizations, the FBI sent letters to the landlords of antiwar activists informing them that their tenant was a “Communist,” it sent anonymous letters to colleges and universities accusing antiwar activists of drug violations, it encouraged local police agencies to arrest war opponents for traffic and other offenses, and so on. The FBI also sent anonymous letters to members of antiwar organizations accusing other members of embezzling the organization’s fund, sleeping with the partners of other members, and even being FBI agents. The goal was to confuse, demoralize, distract, and discredit those who opposed the war, without doing anything that could be seen. None of this was known to the public until 1972.

Finally, a word about the Supreme Court. As we saw, in World War I, the Court upheld the convictions of antiwar protestors under the Espionage and Sedition Act. During World War II, the Court upheld the Japanese internment in Korematsu v. United States. During the Cold War, the Court in Dennis v. United States, decided in 1951, upheld the convictions of the leaders of the Communist Party of the United States on a charge that they had “conspired to advocate” the violent overthrow of government. As Justice Douglas put the point at the time, the Court had decided to “run with the wolves.”

This is not a very happy record. Indeed, the conventional wisdom is that the Supreme Court will never resist the executive branch in wartime. This is overstated. During World War II, the Court held unconstitutional the efforts of the Roosevelt administration to deport American fascists; during the second half of the Cold War the Court took a strong stand against McCarthyism; during the Vietnam War, the Court rejected the Nixon administration’s effort to enjoin the publication of the Pentagon Papers and rejected its claim that it had a constitutional power to engage in national security wiretaps without a warrant. Most recently, the Court rejected the extreme claims of the Bush administration with respect to the rights of the Guantanamo Bay detainees and the rights of American citizens held as “enemy combatants” by the United States military. We should not expect too little of the Supreme Court.

Ultimately, though, the protection of civil liberties depends on an informed, determined, and courageous public. As Louis Brandeis once observed, “courage is the secret of liberty.” May you all have the courage of your convictions.

As Larry said when he introduced me, this is my virgin blog. It was great fun for me, and I hope he’ll invite me back again sometime. I wish you all a happy and healthy New Year.

Geof Stone

Thanks for the amazingly thoughtful and interesting comments on the O’Reilly show. I want to answer one questions about that because several people raised it: Why would any sensible person agree to be a guest on that show? Truth be told, I’ve always in the past declined to be on the Factor and other shows like it. I agreed this time because the issue “Is dissent disloyal?” is important, I’ve thought a lot about it, and I thought I might be able to contribute something useful. And I would have, had he not changed the issue! But, since the main thrust of my guest stint on this blog is learning lessons from past mistakes, I won’t do it again! (The reason, by the way, is not because it’s unpleasant, but because no one should allow himself to be used by a demagogue.)

Speaking of which, let’s return to our history. We left off with the Japanese internment. As several comments noted, the Supreme Court in 1944 upheld the internment in the case of Korematsu v. United States. In effect, the Court held that, in wartime, we all have to make sacrifices, and it couldn’t say that the decision to internment these people was not a rational military decision at the time it was made. Korematsu has gone down as one of the most profoundly embarrassing decisions in the history of the Supreme Court, and the nation has in many ways confessed the unconstitutionality of the internment in the sixty years since the decision. (As an interesting aside, by the way, I sumbitted a friend of the Court brief on behalf of Fred Korematsu –he is still alive and flourishing — in the Guanatamo Bay, Hamdi, and Padilla cases in the Supreme Court last spring.)

At the end of World War II, Americans were optimistic. We had the strongest military in the world, we had just won a “great” war and we had clearly been on the side of the angels. The world was at peace. Within a short time, however, everything changed. Although the Soviet Union had been our ally during the war, relations collapsed beween the U.S. and the Soviet Union as the need for that alliance disappeared. Within a stunningly short period of time, the American economy took a nosedive, there were revelations of Soviet espionage, the Soviet Union exploded its first atomic bomb, China fell to the Communists, Americans began to build bomb shelters as they prepared by nuclear bombs to rain down upon our cities, and the Korean War burst upon the scene.

Who was to blame? How did the Soviets get the bomb? Why had China fallen to the Communists? A group of anti-New Deal Republicans and conservative Southern Democrats had the answer — it was American Communists who had sold us out and were working to further the Soviet cause. Men like Richard Nixon in California and Joseph McCarthy in Wisconsin began to play the Red Card in order to get elected, and they did. In the 1946 elections, the Republicans, who now portrayed the choice as one between Communism and Republicanism, picked up 54 seats in the House. After being out of power for 16 long years, the Republicans had found a strategy that could propel them back into power.

Democrats, who were overwhelmed by the growing anti-Communist hysteria, jumped on the bandwagon, afraid to resist. Within a few short years the United States had a new federal loyalty program for over four million government employees, the House Un-American Activities Committee investigated thousands of individuals to determine if they were secret Communists, state and federal governments adopted their own loyalty programs, investigations, blacklists, and anti-Communist laws. Tens of thousands of people were threatened, intimidated, fired, humiliated, and even prosecuted.

Who were these people? Were they spies and sabotuers? No doubt, there were Soviet agents in the United States. But they were almost never the target of these actions. They were too well-hidden for that. Rather, these actions were cynical efforts to make political hay by taking advantage of, and exacerbating, the fear that was already upon the land. So, who were these people?

After the Depression, many Americans began to search for answers to what had happened to the nation. Many toyed with communism. At this time, the Communist Part of the United States was a lawful political party that ran candidates for public office throughout the nation. It stood for such causes as women’s rights, the rights of labor, and public housing; it opposed the rise of fascism in Europe and racism at home. As many as 250,000 Americans joined the CPUSA in this period. Moreover, many millions more participated in CPUSA events or joined other organization that shared some of the goals and programs of the CPUSA. During World War II, we fought side-by-side with the Soviet Union, and FDR encouraged Americans to see the Soviets as our allies and friends.

After the war, though, all this fell apart. And suddenly the most dangerous question in America was: “Are you now or have you ever been a member of the Communist Party or a member of any organization that is or was affiliated with the Commnist Party or have you ever attended an event sponored by the Communist Party, or signed a Communist Party petition, or attended a Communist Party rally, or read a Communist book?” An affirmative answer to any of these questions would immediately cast doubt on the patriotism and loyalty of the individual. After all, how do we know you’re not still a Commie who is secretly working to subvert the government of the United States.

This was the heart of McCarthyism.

I’ll get back to the history tomorrow (Saturday). For now, though, I want to tell you about my experience tonight as a guest on the Bill O’Reilly show. I received a call this afternoon (Friday) from the producer inviting me to debate O’Reilly on the question: �Is dissent disloyal?� After the producer and I discussed this issue, O�Reilly (according to the producer) decided to redefine the question: �Can an American want the United States to lose the war in Iraq and still be patriotic?�

Of course, this is a loaded question. It not-so-subtly implies that those who oppose the war want the United States to lose and, even worse, want American soldiers to die. One of Joseph McCarthy�s favorite tactics was to imply that anyone who believed in the social or economic principles of communism also supported the violent overthrow of the government. The tactic of guilt-by-inference is all-too-familiar in American history. (I’ll return to McCarthyism in my next entry.)

In any event, in our �debate� O�Reilly insisted on his �narrow� framing of the question and, when I called him on the issue, denied that he intended to imply anything about those who merely oppose the war. I accepted his framing of the question (it is, after all, his show) and argued that a patriotic citizen could in principle want the nation to lose a war if the war is unjust and if losing meant that fewer American soldiers would die for no good reason. O’Reilly maintained that losing a war necessarily means that more American soldiers will die than continuing the war and that no one could therefore patriotically wants the nation to lose. O�Reilly tossed out such ugly phrases as �despicable,� �traitor,� and �disloyal� to describe those who would disagree. The purpose, of course, was to excite his audience.

After the show, I received dozens of emails, most of which were along the following lines:

�You ought to be arrested, tried, convicted of wartime treason. And I don’t have to tell you the penalty for that.�

�I hope they are checking you out for being a traitor!!!�

�You are not only despicable, but should go ahead and move out of the USA.�

�I must imagine, Mr. Stone, that you will look over your shoulder a little bit, because maybe some soldier in a foxhole somewhere might be a tad angered with you and your lunacy. There may be a few G.I.s in Chicago even that would like to �speak� with you.�

�There is the tendency for citizens to take the law into their own hands in these cases. Decent, ordinary people, not of the left, are angry enough at the far left to be willing to go along with things you would consider unconscionable.�

�You’re a despicable Piece of feces, A Gutless Traitor. and I strongly suggest that you get your Terrorist Sympathizing Worthless ass out of this country while you can still walk and talk.�

And so on. What do you make of all this in light of our on-going conversation?

Before we leave the 19th century, a word from our sponsor: Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W. W. Norton 2004). Buy one in the next six hours and you can read the next entry in this blog ASOLUTELY FREE!!

We tend to think of World War I as a generally popular war, like World War II. Nothing could be further from the truth. After the war broke out in Europe in 1914, the vast majority of Americans wanted nothing to do with it. The saw the carnage of the European battlefields and decided the conflicted implicated no vital interests of the United States. Indeed, Woodrow Wilson was reelected in 1916 on the platform that “He Kept Us Out of War!”

In 1917, however, Wilson sought a declaration of war. The reason he sought to enter the war was to preserve the “freedom of the seas.” Under international law, a neutral is entitled to trade with belligerants. The Germans, however, were using U-boats to sink American ships that were bringing munitions, arms, and other supplies to England and France. Ironically, the English and French were also blocking American shipping to Germany. But because Germany had little access to the sea, they could do this my minimg a few harbors and rivers. The only way the Germans could reciprocate was by warning Americans not to trade with English and France, on pain of submarine attacks. Nonetheless, Wilson got his declaration.

Many Americans were angry. They were perfectly happy to forego trade with England and France, rather than get involved in the war. They saw this, not as a “War to Make the World Safe for Democracy,” as the president now billed it, but as a “War to Make the World Safe for Armanents and Munitions Manufacturers.” People like Emma Goldman, Eugene Debs, and Jane Addams vigorously criticized the decision to enter the war.

Wilson had two problems. First, he had to generate enthusiasm for the war. Second, he had to repress dissent that would undermine morale. To address the first problem, he established the Committee on Public Information, a propaganda arm of the United States goverment, the charge of which was to produce a floot of leaflets, pamplets, lectures, and movies designed to promote a hatred of all things German and a suspicion of anyone who might be “disloyal.” To address the second problem, he led Congress to enact the Espionage Act of 1917 and the Sedition Act of 1918, which effectively made it a crime for any person to criticize the war, the draft, the president, the government, the flag, the military, or the Constitution of the United States.

Some 2,000 dissenters were prosecuted under these provisions. They ranged from such obscure dissidents as Mollie Steimer, a 20-year-old Russian-Jewish emigre who threw leaflets in Yiddish from a rooftop on the lower East Side of New York, to such prominent figures as Eugene Debs, the national leaders of the Socialist Party, who had received one million votes for President in 1912 (6% of the total), who gave a speech in Ohio criticizing Wilson for the draft and for his suppression of free expression. Moreover, unlike the Sedition Act of 1798, where the maximum jail term was 6 months, judges enforcing the World War I legislation routinely sentenced people to prison terms of 10-20 years in jail, and many of these people (like Mollie Steimer and Emma Goldman) were deported for their dissent.

And what, you ask, of the Supreme Court of the United States? In a series of decisions in 1919 and 1920, the Court upheld the convictions of these defendants. In effect, the Court ruled that, in time of war, government could punish such criticism of its policies and programs because such dissent could persuade people not to support the war, and that could in turn lead them to do things like refusing induction if they were drafted or being insubordinate if they were in the army. To prevent such harms, the government could constitutionally make essentially any criticism of the war or the draft unlawful.

Things today don’t look quite so bad, do they?

The most profound civil liberties issue during the Civil War involved Lincoln’s suspensions of the writ of habeas corpus. What is the writ? Suppose you are arrested by police or military officers while you’re walking down the street. You or your representative has the right to go to a court and seek a writ of habeas corpus. This writ gives the court the power to order the government to justify its action and it gives the court the authority to order your release if it finds that your detention is unlawful. The writ of habeas corpus is the bulwark of our constitutional system. Without it, the executive branch could unilaterally seize you and you would have no right to have an independent branch of government determine whether the seizure was constitutional. You would be completely at the mercy of the President.

Nonethelss, the Constitution express provides that the writ of habeas corpus can be suspended in cases of invasion or rebellion. The Civil War was certainly the latter. Lincoln first suspended the writ in 1861, shortly after the attack on Fort Sumpter. Seccesionists in Maryland had rioted and prevented Union troops from passing through Baltimore to protect the nation’s capital from attack. To restore order, which was beyond the capacity of the local law enforcement officer, Lincoln (reluctantly) suspended the writ of habeas corpus and authorized the military summarily to arrest and detain individuals in military facilities.

During the course of the Civil War, Lincoln suspending the writ on eight separate occasions. The most far reaching of these was a suspension in 1863 that applied across the entire Union and empowered military officials to arrest and confine any person “guilty of any disloyal act or practice.” As many as 38,000 civilians in the North were arrested by the military during the Civil War under these suspensions. Most were suspected of draft evasion, desertion, or sabotage. Some were accused of seditious utterance.

The most famous of these was Clement Vallandigham, a former congressman and a leader of the Peace Democrats, or “Copperheads.” Vallandigham opposed the war. In his view, it made no sense to compel the Southern states to remain in the Union against their will. He argued that the Union should simply let them seceed, rather than fight a bloody war that would eventually kill 600,000 soldiers. He also opposed the draft, the suspensions of habeas corpus, and the Emancipation Proclamation, which he regarded as an unconstitutional executive action. For going a speech in Ohio in 1863 in which he made these points, Vallandigham was arrested by General Ambrose Burnside and tried by military authorities for “disloyal speech” that would cause desertion and rebellion against the Union army. He was convicted by a military tribunal and sentenced to confinement in a military tribunal for the duration of the war.

There was a storm of protest, from Republicans as well as Democrats. Many Republicans argument that we weren’t fighting the war in order to destroy liberty in the Union. Lincoln found himself between a rock and a hard place. On the one hand, he didn’t want to embarrass his generals by publicly overriding them; on the other he didn’t want to turn Vallandigham into a political martyr. His solution: He order Vallandigham exiled to the Confederacy. (This did not please Vallandigham, who regarded himself as a loyal citizen of the United States. He quickly escaped the South and sneaked back into the U.S., where he participated actively in the 1864 Democratic National Convention.)

After the Civil War, the Supreme Court held in Ex parte Milligan that Lincoln had exceeded his powers as commander-in-chief by declaring martial law in those parts of the country (such as Ohio in 1863) where the ordinary civil courts were open and well-functioning.

So, here’s the question: More than two years ago, the administration arrested Jose Padilla at O’Hare Airport because government officials believed him to be a potential “dirty bomber.” Labelling him an “enemy combatant,” the government removed him to a military brig, where it held him incommunicado, with no access to a lawyer, no access to family and friends, with no judicial determination that there was a lawful basis for his detention. The government explained that, even though Padilla is an American citizen who was seized on American soil, he has no right to judicial reivew of his detention because the President has certified that he is an enemy combatant. Padilla, by the way, is still in custody in a military brig.

What do you think? How does this compare with suspension of habeas corpus?

Before moving on to the Civil War, it may be useful to say a few words about the special problems posed by dissent in wartime. Criticism of the effectiveness of the military, the preparedness of our troops, the morality of the war, the brutality of casulaties inflicted on noncombatants, the number of American casualties, the wisdom of our generals, and so on can easily be seen as the highest form of patriotism. Indeed, the basic premise of democracy is that criticism of the government improves the quality of decisionmaking. On the other hand, such criticism can readily be cast as disloyal.

Civil libertarians are often puzzled by this, but they shouldn’t be. Dissent in wartime may improve the quality of decisionmaking, but it may also and at the same time strengthen the enemy’s resolve. An enemy that knows we are divided and uncertain will fight harder than it we are united and resolute. It knows that even if it cannot win militarily, it might win (or at least obtain a more favorable settlement) because of domestic American politics. Thus, for those Americans who are firmly committed to the war, dissenters are acting treasonably because they are encouraging the enemy and arguably putting American lives at risk. Their response to dissenters is essentially, “Can’t you see what you’re doing? You’re jeopardizing American soldiers! Just shut up!”

Moreover, war unleashes profound passions. Thousands of lives are stake. No one whose child or spouse or friend is in combat wants to hear that he or she is risking life and limb for an immoral purpose. And even less are people willing to hear that when the child or spouse or friend is already dead or grievously wounded. There is a powerful need to rally around the troops and to promise that those who have died have not “died in vain.” In such an atmosphere, it is inevitable that dissent will be equated with disloyalty and that the line between the two will be blurred. We have seen some of this even in the current period.

It’s also important to point out a critical feature of free speech. Few people rationally believe that their decision to sign a petition, send an email, or march in a demonstration will have any effect on national policy. Thus, the benefit to them of speaking out is very small. If they have any reason to fear that doing so will land them in jail, or subject them to government questioning or harassment, or threaten their current or future employment, they will quickly decide that it’s not worth the risk to sign the petition, send the email, or march in the demonstration. This is what we mean by “chilling effect.” The danger, of course, is not just that a lone individual will be silenced, but that an entire segment of the population that would otherwise be critical of the government will be stifled, thus mutilating the thinking process of the community.

Has any of this actually happened since 9/11?

Lots of interesting comments and questions. Let me go back to the beginning, to a time less than a decade after the United States adopted our Constitution. In 1798, there was a bitter political division in the young nation between the Federalists (led by John Adams and Alexander Hamilton) and the Republican (led by Thomas Jefferson and James Madison). In the elections of 1796, the Federalists had retained control of both houses of Congress and Adams had defeated Jefferson by a scant three electoral votes. It’s important to understand that at this time in history Americans were deeply uncertain about the nation’s future. Would democracy work? There was no good precedent. It was truly an experiment, and no one was sure the nation wouldn’t simply fall apart. The Federalists represented the propertied class. They were very concerned about stability and security, and were very anxious about the passions and irresponsibility of the common man. The Republicans exalted liberty over security and were deeply suspicious of the Federalists.

At this time, a war raged in Europe between England and France. The United States tried to maintain its neutrality so it could both avoid war and continue to engage in commerce with both all sides. But in 1798 the United States entered into a treaty with England that infuriated the French. Adams put the nation on war footing. The Federalists gave him a larger army and a larger navy. We were on the brink of declaring war. The Republicans were furious. They were much more sympathetic to the French (who had overthrown their monarchy) and much more hostile to the English (who were still ruled by a monarch). It was in this context that the Federalists enacted the Alien and Sedition Act.

The Alien Act empowered President Adams to arrest, detain, and deport any non-citizen he found to be a danger to the security of the nation. The individual was given no right to a hearing and no right to present evidence in his defense. The Republicans objected that this was unconstitutional; the Federalists responded that aliens had no rights under the United States Constitution because they were not part of “We the People.” The Sedition Act effectively made it a crime for any person to criticize the President, the Congress or the Government of the United States. The Republicans vehemently object that the Act violated the First Amendment; the Federalists argued that in time of war it was essential to stifle criticism of the government because if the People lost confidence in the government they would not make the sacrifices war demands.

The Federalist prosecutors and judges used the Sedition Act exclusively against Republicans, especially against Republican congressmen and editors who criticized the President. Although the Federalists argued that this legislation was necessary because the nation was on the brink of war, the real reason the Federalists wanted it was to silence Republican criticism and thus to ensure that Adams would defeat Jefferson in the election of 1800.

The plan backfired. The American people rose up in protest against these Act and elected Jefferson. This led to the demise of the Federalist Party. Jefferson pardoned all those who had been convicted under the Act. Fifty years later, Congress declared that the Sedition Act of 1798 was unconstitutional, and the Supreme Court has never since missed an opportunity to declare that the Act was unconstitutional in the “court of history.”

There are (at least) two lessons we can learn fro this episode: First, clever politicians will often take advantage of a wartime atmosphere to enact policies that will serve their partisan ends. Second, it will often fall to the People themselves to protect their civil lliberties. They cannot always rely on elected officials or judges to protect them for them.

Do you think any of this is relevant to the present?