Abridging (the history of) freedom of speech

Friday, May 4, 2007

Journalists routinely confront the paradox of “writing short” — namely, that the difficulty of conveying a story tends to be inversely proportional to the space or time allotted for doing so. Authors, too, encounter this somewhat counterintuitive principle whenever they endeavor to write concisely. Brevity is golden.

Geoffrey Stone’s new 184-page book, War and Liberty (W.W. Norton, 2007), is therefore a remarkably ambitious undertaking for the University of Chicago law professor, who describes his latest work as an “abridgement and adaptation” of Perilous Times, his widely acclaimed, 557-plus-page tome on the history of free speech in the United States during wartime.

New audience
By condensing (and, in the final chapters, updating and expanding) the now-three-year-old Perilous Times into an easily digestible paperback, Stone evidently aims to reach a new audience for his historical narrative. Whereas Perilous Times most naturally appealed to lawyers, history buffs and scholars, Stone seems to target a broader demographic in War and Liberty, tailoring it to readers of college age (or advanced high-school students) as well as to adults less versed in the nuances of constitutional theory than the average reader of Perilous Times.

If this was Stone’s intent in publishing War and Liberty, he is likely to succeed. Through an exceptionally accessible text, replete with captivating details about the various fringe figures whose activities became the proverbial canvas for our First Amendment jurisprudence, Stone accomplishes a great deal in relatively few pages. Not the least of which is sure to be the furtherance among a new generation of the “culture of civil liberties” that he views as essential to curbing wartime intrusions on personal freedom.

For members of that generation — teenagers and twenty-somethings who have at their disposal an unprecedented array of information sources and communicative tools but who have never witnessed anything resembling true civil disorder on American soil — War and Liberty recounts events that will be in many respects entirely unfamiliar: incidents of unapologetic government suppression of dissent.

Distinct periods of national insecurity
As in Perilous Times, Stone takes readers of War and Liberty, chapter by chapter, through several distinct periods of national insecurity during which tolerance for free speech and other civil liberties was severely tested.

He begins with the period leading up to the passage of the Sedition Act, when a “climate of fear, anxiety, and suspicion” permeated the fledgling republic, then on the brink of war with France. Amid this fervor, and only a few years after the states had ratified the First Amendment, Congress enacted sweeping limitations on free expression in the name of public safety, thereby enabling the Federalist government of John Adams to arrest, indict and convict Republican firebrands like Matthew Lyon and anti-war journalists like Thomas Cooper and James Callender for little more than communicating their disapproval of federal policies. Although this period of majoritarian repression is widely considered an aberration in American history, Stone counsels his readers to take from it an important lesson: the need for skepticism of government assertions of national security as the basis for punitive measures.

War and Liberty proceeds to review episodes of suppressive government action during the Civil War, when Republican Union leaders pursued prosecutions of political opponents like Clement Vallandigham solely on grounds that their speeches and writings were fomenting disloyalty, encouraging desertion among the military ranks, and undermining the draft effort. Moving into the 20th century, Stone details curtailments of liberty during World War I, when the Espionage Act of 1917 led to the jailing (with the express endorsement of the Supreme Court) of a wide swath of dissenters — from anarchist pamphleteers to pacifist preachers to Socialist politicians like Eugene V. Debs — on the basis of the “bad tendencies” associated with their anti-establishment messages. Stone rounds out his historical account with tales of early Cold War probes aimed at purported communist sympathizers, Vietnam-era repression of student demonstrators and Nixon’s attempt to silence the press in the Pentagon Papers case.

Throughout this progression, Stone’s commentary both informs and elucidates, helping his readers to understand the circumstances that gave rise to laws designed, in varying degrees, to suppress or silence dissenting voices. And, although the book winds down with a sobering bill of particulars on the retrenchment of privacy rights, the expansion of government authority and the decline of open government in the post-9/11 age, Stone also offers a measure of encouragement, observing that “we have made demonstrable progress” in the “development of a national consciousness about civil liberties.” As a result, Stone writes, “in 2004 it was inconceivable that the Bush administration would prosecute Howard Dean, even though his criticisms of the war in Iraq were every bit as inflammatory as the criticisms of Lyon, Vallandigham, and Debs.”

Where War and Liberty encounters difficulty, however, is in its ambition. Stone attempts to cover an extraordinary amount of temporal ground in an extremely succinct fashion. For the most part, it works, but at times — especially, though not exclusively, in the chapter on the “war on terrorism” — Stone succumbs to the temptation to weave in more concepts than space permits.

For example, he uses the Bush administration’s controversial secret wiretapping program as a springboard for a terse discussion about the proper balance of executive power vis-à-vis Congress, a constitutional question far afield from the subject of government intrusions on personal liberty. Similarly, although more in keeping with the theme of limitations on individual freedom (if not the more specific theme of restrictions on speech that is the focus of much of the book), Stone diverges into the topic of detention and incarceration of reputed enemy combatants.

The costs of compactness
Although each of these issues fits within the broad theme of freedom in wartime and Stone draws some common threads among them, in such a condensed treatment they contribute to a sense of choppiness and incompleteness. In short, the chapters do not cohere as well as they might have had Stone hewed more closely to a single issue. One could, however, easily imagine Stone creating a trilogy of compact soft-cover books expanding on each of the issues that crop up in War and Liberty — perhaps War and Speech, War and Privacy and War and Secrecy.

Because of the book’s compactness, Stone also occasionally sacrifices context or assumes knowledge on the part of the reader. For instance, he takes for granted that his audience will understand the analogy he draws between Eugene McCarthy and Eugene Debs without ever providing an account of McCarthy’s political activities. (Unfortunately, many of the readers of War and Liberty are unlikely to know Joe McCarthy from Eugene McCarthy.)

Nevertheless, as the historical overview that it is obviously designed to be, War and Liberty makes an important contribution to public understanding of the perils to freedom that arise when voters and their elected officials allow fear and insecurity to dictate public policy.

John O’Keefe is an attorney with the law firm Levine Sullivan Koch & Schulz, L.L.P., where he represents news and entertainment media in defamation, privacy, newsgathering, access, copyright, trademark and related First Amendment matters.