Free Speech and Patriotism in Times of War

It has become a truism that the American people are "too cynical" about their government. We hear this repeated often, but I think the truth is quite the opposite. I think most Americans are still entirely naive about their government, even after having our trust betrayed by the government so many times. The nature of government - all governments - is to increase its power, to protect its privelege by abusing and circumventing the law and by expanding the scope of its authority. At no time is this tendency more obvious than in wartime.

In the US, as in most countries, we have a prevailing sentiment that when the country is at war, everyone should "get behind" the government and criticism of their policies should cease. How many times have we heard the protestors of the Iraq war savaged as "anti-american" and "unpatriotic"? I think this conception of patriotism is childish and dangerous, as it has often been used to shred the first amendment. It is astonishing to me how quickly and easily many Americans are willing to give up their freedom, ostensibly in the name of protecting that freedom. And this is not a new phenomenon. It goes all the way back to the founding fathers themselves.

In 1798, under John Adams, the Sedition Act was passed. A scant few years after the first amendment declared that Congress shall make no law abridging freedom of speech or of the press, this act declared:

That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States...shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

This effectively gutted the first amendment protections of freedom of speech and freedom of the press, of course. The pretense for this act was the threat of impending war with France, but it was passed for one purpose - to squelch criticism from Thomas Jefferson and his Republican allies. And it worked for that purpose. Prominent editors of opposition newspapers were arrested and their newspapers shut down, including Benjamin Franklin's grandson. But in those days, the people were savvy enough to react to this power grab on the part of government. The outcry over these violations was largely responsible for the election of Jefferson to the presidency in 1800, defeating Adams. Jefferson promptly pardoned everyone convicted under this law and repaid the fines, with interest. Unfortunately, it did not stop there.

In the early days of the Civil War, Lincoln came under fire from a group that was often called the "copperhead Democrats". They opposed the war and sought to broker a truce and call a new constitutional convention to frame an amendment protecting state's rights. In 1861, Lincoln suspended the civil law in certain territories and claimed for himself all powers not specifically delegated in the constitution. In 1862, he suspended habeus corpus and ordered the arrest of many of the leaders of this group under military law. 13,000 people were arrested and imprisoned by his order. The Chief Justice of the Supreme Court, Roger Taney, declared the action unconstitutional - Lincoln and the military simply ignored this ruling.

In 1917, Congress passed the Espionage Act. That act declared it a crime to advocate by speech anything that

"shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the U.S."

This was interpreted to prohibit any criticism of the US entering World War I in Europe, and over 2000 people were arrested on these obviously fraudulent grounds. In one overlooked irony of the situation, the maker of a film entitled The Spirit of '76, which depicted British atrocities against those who fought in the American Revolution, was arrested and charged with violating the Espionage Act. Why? Because, as the judge said, the film might cause Americans "to question the good faith of our ally, Great Britain." In a case ironically titled U.S. v. Spirit of '76, the filmmaker was sentenced to 10 years in prison.

In the case with Lincoln during the Civil War, the Supreme Court at least attempted to stop this rush to destroy the first amendment. In this case, the Court was no help at all. In two consecutive unanimous decisions, both written by the eminent Justice Oliver Wendell Holmes, the Court declared that the Espionage Act did not violate the first amendment. In the first of these decisions, Holmes invokes the now-infamous and often repeated line that the first amendment "would not protect a man in falsely shouting fire in a theater". It's an absurd analogy, of course. Speaking out against a government policy is not in any way analagous to shouting fire in a theater and causing a stampede.

The Espionage Act remains on the books today and can be invoked in times of war or "national emergencies". In fact, the law was extended in 1940 by the Smith Act to invoke its provisions in peacetime as well. In 1941, the government raided the headquarters of the Socialist Workers Party and arrested their leaders for violating this act. Again, hundreds were arrested for nothing more than advocating ideas that the government disapproved of, and again, the Supreme Court allowed it to happen. Time after time, the clear command that "Congress shall make no law abridging the freedom of speech, or of the press" has been violated in the most flagrant fashion, with little outcry from the public since the early days of this nation.

Why do the American people so easily give up the bill of rights in times of impending war? Because, as I said up front, we are not only not cynical enough about our government, we are incredibly naive. Most Americans simply do not understand the principles involved or know the history of such violations. And they are too easily frightened into thinking that in times of war, the government must somehow protect us from our own questions about their actions. But how many times must this be abused before we wake up? We were lied to about the Gulf of Tonkin incident that provided the pretext for war in Vietnam. We were lied to about the secret bombing of Cambodia. Over and over again, the government has used patriotism and impending war as an excuse to silence their critics. And yet, every time it happens, too many Americans just roll over and play dead. In all cases since the earliest days of the republic, it is only a small minority that protests such violations. Intimidated into silence by the shallow nationalism that inevitably accompanies times of war, we give up not only our right to question our government, but our duty to do so. As Teddy Roosevelt said,

To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.

In times of war, this becomes more important, not less. I agree entirely with the historian Howard Zinn, who writes,

It seems to me that the security of the American people, indeed of the world, cannot be trusted to the governments of the world, including our own. In crisis situations, the right of citizens to freely criticize foreign policy is absolutely essential, indeed a matter of life and death. National security is far safer in the hands of a debating, challenging citizenry than with a secretive, untrustworthy government."

More like this

Brian Leiter says that if us libertarian-minded bloggers aren't blogging about the ridiculous "free speech zones" at the Democratic National Convention, we ought to resign from the human race. That's a little strong, I'd say, but I certainly agree with him on the absurdity of what is going on. You…
One of the most overlooked events in American history is the battle between Lincoln and the Supreme Court over habeas corpus. One would think that the recent Supreme Court cases involving the authority of a president to suspend habeas corpus would have been an ideal time for those in the media to…
In a discussion on the religion law listserv last week, in an exchange with Jim Henderson, senior counsel with Pat Robertson's American Center for Law and Justice, the issue of constitutional law and original intent came up. Mr. Henderson was arguing that the original intent of the framers was the…
The Supreme Court has agreed to hear a case involving a display of the Ten Commandments on government property. The case is McCreary County v. ACLU of Kentucky. This morning I received a PDF of a brief filed in that case on behalf of several religious right organizations. I do not know if the brief…