Category Archives: guest post

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? Continue reading →

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? Continue reading →

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… Continue reading →

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? Continue reading →

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? Continue reading →

How many of you think we live in perilous times? I agree (with those of you who think we do). For the rest of you, think again. We live with the ever-present threat of another terrorist attack. On 9/11, you were shocked. If another such event were to occur five minutes from now, you would be horrified, but not shocked. The expectation now rests just under your level of consciousness.
Moreover, we are engaged in an ever-more disturbing war in Iraq. Last night, I watched the movie Fog of War (the Robert McNamara documentary). The similarities in the depth of American foreign policy misunderstandings between the Vietnam War in 1966 and the Iraq War in 2004 are stiking, and unnerving. There is much to fret about. I want to make it worse. I want to give you something else to worry over. You should be losing sleep about the security of your civil liberties.
The United States has a long and consistent pattern of unduly restricting civil liberties in time of war. Time after time, we have panicked in the face of war fever. We have lashed out at those we fear and allowed ourselves to be manipulated by opportunistic and exploitative politicians. We did this in 1798, when we enacted the Alien and Sedition Acts, during the Civil War when Lincoln suspended the writ of habeas corpus, during World War I when the nation brutally suppressed all criticism of the war and the draft, during World War II when we interned 120,000 individuals of Japanese descent, during the Cold War when we humiliated, abused and silenced tens of thousands of individuals for their political beliefs and associations, and during the Vietnam War when the government engaged in an aggressive program of surveillance, infiltration, and surreptitious harassment designed to “exposre, disrupt, and neutralize” antiwar dissent.
We have made some progress over the past two centuries. We are less likely to do some of these things today than we were in 1798, 1863, 1917, 1942, 1950, or 1968. That is a cause for celebration. But that progress is fragile. The forces unleashed in wartime are extremely powerful, and the fear, anxiety, anger, and vulnerability that war entails can quickly translate into persecution and oppression. Certainly, we have seen warning signs of this in some of the actions of the Bush administration since 9/11. Imagine what might happen if we were now to suffer a succession of six 9/11-like attacks over the next six weeks.
Can we learn the lessons of history? Can we avoid repeating the mistakes of the past? Given the pressures and fears of war, can we discipline ourselves both as individuals and as a nation to respect civil liberties even in a time of war? And is it even sensible to talk seriously about civil liberties in wartime? What do you think? Continue reading →

I’m gone to Italy today to help launch Creative Commons Italy. Through Saturday, Geof Stone will be guest blogging about his new book, In Perilous Times. He’s new to this form. Welcome him well. Continue reading →

Larry has been extremely generous in providing me this week-long opportunity to use his blog to explore some controversial questions involving contemporary intellectual-property law. I�m grateful to him � and to all of you who have offered reactions to my suggestions and questions. Terry Fisher… Continue reading →

Well, the debate was fun, but frightening, of course. There were so many times when I felt like a fool–not finding my words or letting some golden opportunities just slide by. But it was wonderful to be finally looking him in the eye and speaking the truth right at him. WMUR has an online poll of viewers. Those who though I won: 79%. Those who though Judd Gregg won: 20%. So I thank my many coaches on this site, and for all your encouragement, which was very real and very strengthening to me. And to Professor Lessig, I do so… Continue reading →

I sincerely want to thank the many of you who gave me so much information and so many valuable perspectives on the issues I’ve raised here. In less than an hour I will go into the lion’s den to debate Judd Gregg. He, as you may know, is the fellow who prepped Geo. Bush for his debates. My only hope is that George returns the favor! Otherwise, we are doing what campaigns are supposed to do before a debate: lowering expectations. That is difficult in my case, as we are already just where a campaign would want to be. Going… Continue reading →