The book provides an expansive overview of this history. It marches us – without ever plodding – through the Sedition Act of 1798, Lincoln’s suspension of habeas corpus and occasional stifling of dissent, the Espionage Act of 1917, the Sedition Act of 1918, the antics of the Dies Committee and J. Edgar Hoover, the outrages of the House Un-American Activities Committee and Joseph McCarthy, the suppression of protest at the 1968 Democratic National Convention, and various post 9/11 indulgences like the PATRIOT Act. It is a history of attempting to attack “dangerous” ideas by deploying bad ones.

Judging Judges

We like to believe that an independent judiciary will protect our rights from such excesses of the executive and legislative branches. But Stone offers us scant consolation in this regard. Indeed, one of the most disquieting aspects of the book is the repeated failure of the judiciary -- including the United States Supreme Court – to serve as a strong, calm voice of reason and liberty amid cries of paranoia and oppression.

Stone invites us “to question whether we can count on judges and jurors to protect our civil liberties in moments of high national anxiety.” He criticizes one judge for “serv[ing] as a junior partner, rather than as a critical check on the executive.” He takes Justice Holmes to task for his early opinions in Schenck, Frohwerk, and Debs. He adds his voice to the chorus that has condemned Korematsu. And he does not spare the legal profession generally, noting, “sadly,” that in 1951 the American Bar Association “called for the expulsion of all members of the Communist Party and urged all state and local bar associations to disbar such individuals.” In the course of this history lawyers and judges often succumbed to the fevers of the times, and forgot that if the First Amendment protected only favored speech it would be unnecessary.

Of course, this story has its heroes. Stone’s profile of Judge Learned Hand provides a stunning example of the triumph of principle over self-promotion. His portrait of Justice Robert Jackson depicts a man of immense gifts repeatedly marshaled in the causes of justice. And the book would be worth reading if only for the stories about the steely resolve of University of Chicago President Robert Maynard Hutchins. A particularly memorable moment comes when a state legislative committee recommends the dismissal of Professor Robert Lovett, a “venerable teacher with a penchant for left-wing causes.” Hutchins refused, but some faculty members remained concerned. One approached Hutchins and said: “[I]f the trustees fire Lovett you’ll receive the resignation of twenty full professors.” “Oh no I won’t,” Hutchins replied. “My successor will.”

First Amendment Characters

First Amendment jurisprudence has largely developed through cases addressing speech outside or on the edges of convention, so as a group the characters responsible for this development are characters indeed. Perilous Times profiles a number of them. We meet Mollie Steimer, whose views were so unorthodox that in the 1920s she had the distinction be being deported by both the United States and the Soviet Union. We meet William Dudley Pelley, the toilet-paper-factory worker who became a gifted writer, authored screenplays for MGM and Universal, and had an “out-of-body experience” that transformed him into a vicious anti-Semite who ran for President on the slogan that “the time has come for an American Hitler.” And we meet Clement Vallandigham, who spoke in opposition to the Civil War, was imprisoned by General Burnside, was banished to the Confederacy by Lincoln, fled to Canada, returned to Ohio to practice law, and accidentally shot and killed himself while preparing to demonstrate in court how his client’s alleged victim could have done just that. The history of free speech, particularly in war time, is a long strange trip with many strange fellow travelers.

Samuel Johnson once famously observed that while Paradise Lost is a great poem, no one ever wished it were longer. Some readers may, however, wish just that of Perilous Times. A book so dense in historical information would benefit from some additional analytic discussion. And the segment on the War on Terror seems a bit thin, even allowing for the fact that historical writing on current events is dangerous stuff. But a complaint that excellence would be enhanced by more of it is perhaps no complaint at all.

Geoffrey Stone has achieved something truly remarkable. He has woven a delightful, readable story that stretches from the beginnings of our Republic to the current day. And he has done so without tempering the sobering lessons that this history provides to all of us in these, our own perilous times.