Wartime riskiest for free speech, scholar says

Friday, November 5, 2004
Geoffrey R. Stone

Geoffrey R. Stone is a professor of law at the University of Chicago Law School, was the dean of the law school from 1987 to 1993, and is the author of Perilous Times: Free Speech In Wartime (Norton, 2004). The book will be in bookstores in October 2004. The interview was conducted in August 2004.

Ronald Collins: If you were to pick one or two core insights that came to you in the course of writing Perilous Times, what would they be?

Geoffrey Stone: First, democracy is always a work in progress. We can never be complacent about our liberties. Just as we are now trying very self-consciously to build a culture of democracy in Iraq, so too must we constantly reaffirm and reinvent American democracy. When the people stop thinking about their rights — and the rights of others — all is lost. An important goal of Perilous Times is to contribute to that ongoing process of national self-discovery and reaffirmation.

Second, we learn from experience. We learn unevenly, but we do learn. We have a stronger culture of respect for civil liberties today than we’ve ever had before. I was surprised to come to this conclusion. Of course, our commitment to civil liberties is always contingent, always somewhat fragile, and as Perilous Times reveals, a culture of respect for civil liberties can easily be overwhelmed by the fears and anxieties of wartime.

Collins: In the introduction to your book, you write: “[I]n order to understand free speech, we must understand free speech in wartime.” Could you explain that a bit more for our readers?

Stone: In working on the book, I was surprised to discover something I’d never before realized: The United States government has never attempted directly to suppress criticism of public policies or public officials except in time of war. (Perhaps everyone else had figured this out before me, but I don’t think so.) Except in the episodes addressed in Perilous Times (the near war with France in 1798, the Civil War, World War I, World War II, the Cold War and the Vietnam War), the federal government has stayed out of the business of punishing people for “seditious” expression. That’s an important and revealing insight.


Collins: Is there any one person whose thoughts have influenced your views of free speech more than others? Who would that person be and why?

Stone: I have to mention two: Harry Kalven and William J. Brennan.

Kalven was my teacher at the University of Chicago Law School and then, later, my colleague when I joined the faculty in 1973. Kalven was one of the great First Amendment scholars of his generation. He played a pivotal role both in exciting my passion for the First Amendment and in helping shape my understanding of these issues.

I also had the incredible good fortune of serving as a law clerk to Justice Brennan, the most influential Supreme Court Justice on the meaning of free speech in the second half of the 20th century.

Kalven and Brennan very much admired one another. There is no question that I am who I am because of the influence and example of these two pillars of the First Amendment.

Collins: Are there one, or two, great non-judicial figures that stand above the rest when it comes to the history of free speech in wartime?

Stone: Congressman Albert Gallatin was a bold and brilliant defender of free speech during the controversy over the Sedition Act of 1798. He and his fellow Republicans articulated a sophisticated conception of the First Amendment. Some of their insights did not make their way into Supreme Court opinions until 125 years later.

Abraham Lincoln embraced a remarkably thoughtful and nuanced position on free speech in wartime. His analysis of these issues during the Civil War showed him to be not only a brilliant rhetorician, but a skilled constitutional lawyer as well.

Senators Estes Kefauver, Herbert Lehman and William Benton stood tall in the face of the anti-communist witch hunts of the 1950s. They were admirable examples of principled and courageous public servants.

In the academic world, Zechariah Chafee of Harvard, Robert Maynard Hutchins of the University of Chicago, Emily Balch of Wellesley College, and the young Felix Frankfurter were heroic in their defense of free speech. They all put their careers on the line for their belief in the right to dissent and the principle of academic freedom.

Finally, there were great lawyers, like Gilbert Roe during World War I and Abe Fortas during the Cold War, who took daring stands and great personal risks in their defense of free expression.

Heroes & villains

Collins: Was Justice Oliver Wendell Holmes more of a hero or villain in the history of free speech? After the rule and application of Schenck — followed in Abrams, Frohwerk, Debs, and Gilbert — it took almost a half-century to undo Schenck’s doctrinal harm. And even so, Schenck survives, in a formal sense, as a precedent if only because Brandenburg v. Ohio (1969) is not a wartime case, and Schenck has never been explicitly overruled. Given that, what should we make of Holmes and his handiwork, both in terms of what he said and did?

Stone: As Harry Kalven once observed, Justice Holmes “got off to a rather limping start” in his eventual role as the great defender of free speech with his 1919 opinion in Schenck. Nonetheless, Holmes, along with Justices Brandeis, Black, Douglas and Brennan, is one of the judicial heroes of the First Amendment.

'The United States government has never attempted directly to suppress criticism of public policies or public officials except in time of war.'

To me, the most interesting thing about Holmes’s evolution is that it illustrates quite powerfully the very idea that was at issue. That is, with continued debate and deliberation, Holmes learned. The progression of his views on free speech from Schenck to Abrams to Gitlow demonstrates the power of the “marketplace of ideas.”

Ultimately, Holmes had more influence on both the constitutional and public understandings of the First Amendment than any other figure in American history. The closing paragraph of his dissenting opinion in Abrams remains, in my view, the most eloquent and most moving statement ever written about free speech in the United States.

'Ultimately, (Oliver Wendell) Holmes had more influence on both the constitutional and public understandings of the First Amendment than any other figure in American history.'

Collins: In Perilous Times, you discuss the various attorneys general who played key roles in the history of free speech in wartime — people like A. Mitchell Palmer, Francis Biddle and others. In your opinion, which attorney general was most sensitive to First Amendment liberties in wartime, and which was least sensitive to them?

Stone: Robert Jackson and Francis Biddle, both under FDR, were stalwarts in their efforts to protect free speech in wartime. They had both experienced the excesses of World War I and they were determined not to make the same mistakes. They showed courage, integrity and strength of character in their defense of the First Amendment. FDR, on the other hand, was of a rather different view. He was often quite insistent that his attorneys general, especially Biddle, “prosecute the seditionists.”

The least-sensitive attorney general in this context was surely A. Mitchell Palmer. In the post-World War I “red scare,” Palmer ran roughshod over First Amendment rights in his ultimately failed campaign to ride a storm of political repression into the White House.

During the Vietnam War, John Mitchell certainly proved “insensitive” to First Amendment liberties, and very early in our history Secretary of State Timothy Pickering left no stone unturned in his effort to ferret out and imprison those deemed “disloyal.”

Collins: You devote a fair amount of favorable ink to Robert Maynard Hutchins, the former dean of the Yale Law School and later the president of the University of Chicago. What makes him such an important First Amendment figure in your estimation?

Stone: Courage. When most public figures were desperately seeking ways to live quietly with the ravages of the anti-communist furor of the mid-20th century, Hutchins was unyielding in his defense of academic freedom and free expression. He resisted pressure from alumni, trustees, and legislative investigating committees, and consistently and eloquently advocated the fundamental importance in a democratic system of respect for the views of others. As Hutchins observed, if Americans will not maintain an attitude of constant questioning and tolerance of disagreement, then we might as well “blow out the light and fight it out in the dark, for when the voice of reason is silenced, the rattle of machine guns begins.”

War & experiments in freedom

Collins: From a First Amendment perspective, what was the worst “wartime period” in our history and why?

Stone: I don’t know if I can “rank” these eras with any precision. The circumstances were so different from one period to the next that such measurement is next to impossible.

'From a free-speech perspective the three worst periods were 1798, World War I and the Cold War. In each of these eras, national political leaders intentionally generated a wave of public fear in order to silence their critics.'

With that caveat, I would say that from a free-speech perspective the three worst periods were 1798, World War I and the Cold War. In each of these eras, national political leaders intentionally generated a wave of public fear in order to silence their critics.

In 1798, the Federalists used the Sedition Act as a political weapon in an effort to destroy the Republicans and secure victory in the election of 1800. During World War I, the Wilson administration created a propaganda agency, the Committee on Public Information, in order to propagate the view that anti-war dissent was treasonable. And during the Cold War, Republicans exploited anti-communist hysteria in a partisan effort to regain control of the national government. In each of these episodes, anyone who expressed nonconforming views ran a serious risk of persecution and/or prosecution.

Perhaps the worst single abuse in wartime, however, was not about free speech. It was the forced internment during World War II of almost 120,000 individuals of Japanese descent, including 90,000 American citizens, representing two-thirds of all Japanese-Americans. I discuss this is Perilous Times because it is such a vivid example of the dangers of wartime hysteria.

Collins: The year 1968 was one of the most rebellious and violent ones in the history of protest in America. The Chicago protests that year gave liberals like Justices Hugo Black and Abe Fortas much pause. Next came the “days of rage” and Kent State. And as you point out, then-California Gov. Ronald Reagan had little patience for campus militancy. He once declared: “If it takes a bloodbath, let’s get it over with.” Such examples point to the risk side of the liberty equation. Just how risky should we let this experiment in freedom get?

Stone: We should distinguish between different types of risks. In some circumstances, dissenters act lawfully, but their opponents respond with violence. Too often, government has taken the view that to prevent such violence it must silence the dissenter. This was frequently the case during World War I, for example. Indeed, the Sedition Act of 1918, which made it unlawful for any person to utter or publish any disloyal, scurrilous, or abusive views about the government, the flag, or the Constitution, was “justified” by its supporters as a means of preventing violence against dissenters, some of whom had been severely beaten and even hanged by self-proclaimed “patriots.” This is perverse.

'When dissenters cross the line between peaceful dissent and violent conduct, they shed the protection of the First Amendment. Assassination is not a First Amendment right.'

The proper response of the government should not be to prohibit dissent, but to protect the speaker and punish those who resort to violence. The very idea of a “heckler’s veto” (that is, allowing a speaker’s opponents to cause the speaker’s arrest by threatening violence) is incompatible with the most basic premises of the First Amendment. The Supreme Court finally came to this conclusion during the civil rights movement of the 1960s.

A different question arises when it is the dissenters who resort to violence. Do dissenters have a constitutional right to break windows, attack policemen or blow up troop trains in order to dramatize their opposition to a war? Clearly not. When dissenters cross the line between peaceful dissent and violent conduct they shed the protection of the First Amendment. Assassination is not a First Amendment right.

A more complex question involves acts that are unlawful but nonviolent. Consider, for example, a dissenter who burns his draft card as a symbolic expression of protest against the draft. Can he be punished? If a law prohibits any person to “destroy a draft card as a form of anti-war protest,” the law is unconstitutional because it is directed at expression. But suppose a law [forbids] any person to destroy a draft card, a driver’s license or a social security card, and that the purpose of the law is not to suppress anyone’s speech, but to ensure that people have ready access to the information on the card. The Supreme Court has held that such a law can constitutionally be applied to punish a person who burns a draft card, even if he does so as a form of protest. Similarly, a dissenter who blocks the entrance to a government building can be punished if the law under which he is prosecuted is not directed at speech and is applied neutrally to all who violate it.

Another variant of this question concerns the issue of “incitement.” Certainly, a dissenter has a First Amendment right to urge others to sign anti-war petitions and participate in anti-war demonstrations. But does she have a right to urge others to protest the war by blowing up buildings? This question has long haunted the Supreme Court, and it recurs throughout Perilous Times.

In 1969, the Court held in Brandenburg that a speaker cannot constitutionally be punished even for advocacy of law violation unless violence is likely to occur imminently. This may be the best measure of how much risk we are prepared to run in order to preserve a broad range of free speech. As it turns out, after two centuries of doctrinal evolution, we are willing to accept quite a bit of risk in order to guarantee a robust and wide-open political discourse, even in time of war. Essentially, the Supreme Court has concluded that, except in true emergencies, the government must focus its energy on punishing the lawbreaker rather than silencing the speaker.

Culture of civil liberties

Collins: In the course of your discussion of the Pentagon Papers case, you stress the importance of an “independent federal judiciary.” When it comes to the First Amendment, how independent do you find the current Supreme Court to be?

Stone: With the rather achingly large exception of Bush v. Gore, I would say the Supreme Court is nonpartisan and highly independent. The recent decisions in the Guantanamo Bay and Hamdi cases make clear that the Court is fiercely protective of its own prerogatives and responsibilities. This is not to say that the Court will never defer to military judgments. To the contrary, within certain limits, the Court will always give some deference to the executive when it asserts the needs of national security. The critical question is how much deference is appropriate. In the past, the Court has tended to accord too much respect to claims of national security, and this has led to some truly dreadful decisions, such as Korematsu and Dennis.

'The idea of a “culture of civil liberties” goes well beyond the Congress. … In the end, the most fundamental protection of civil liberties must come from the people themselves.'

The standard argument of the executive is that judges are not competent to second-guess military judgments about the demands of national security. But it is equally true that those who run the military are not competent to make difficult judgments about civil liberties.

Perilous Times shows that the Court has learned from its past mistakes and that it is likely to be more skeptical of military-necessity claims in the future than it has been in the past. In order not to blunder into another generation of decisions like Korematsu and Dennis, the Court is likely to ask harder questions and to push back more forcefully than it has in past controversies. This is a positive development.

Collins: In the conclusion to Perilous Times you call for a “culture of civil liberties.” In that regard, you urge, among other things, Congress to adopt certain rules and protocols so as to safeguard our First Amendment liberties. However salutary such proposals, do you really think they are likely or even possible today?

Stone: The idea of a “culture of civil liberties” goes well beyond the Congress. It refers more broadly to education, the media, the legal professions, etc. In the end, the most fundamental protection of civil liberties must come from the people themselves.

Think of Iraq. Right now, we are trying to build a “culture of democracy” in Iraq. This presumably means a sense of tolerance, a respect for difference and disagreement, a willingness to abide by the rules, a responsibility to participate in public affairs, and so on. Developing a culture of civil liberties is not a one-shot affair. It is an ongoing process that must constantly be reaffirmed and learned anew by each generation of Americans.

With respect to Congress, Perilous Times suggests two modest, but important, reforms: (1) Congress should not suspend the ordinary rules of procedure when it considers wartime legislation restricting civil liberties. (2) There should be a mandatory one-year sunset rule for such legislation. Such protocols will not prevent all overreactions, but they would help at the margin. The worst wartime statutes — the Sedition Act of 1798, the Sedition Act of 1918, and the McCarran Internal Security Act of 1950 — were adopted in haste, without adequate debate and deliberation. If Congress had held hearings and fully debated the Patriot Act before enacting it, for example, it would surely have been a more thoughtful and more measured piece of legislation.

Collins: If there were to be a First Amendment challenge — either a facial or as-applied challenge — to some section of the Patriot Act, do you suppose the Court would rely heavily on the clear and present danger / imminent danger line of cases or would it rely instead on that “fortress of doctrinal presumptions” you mention that are today used to safeguard our free-speech liberties? (I assume you were referring to doctrines like “overbreadth” and “content-neutrality,” etc.) In other words, to what extent, if any, have the “danger” precedents from Schenck to Brandenburg been eclipsed?

Stone: These two types of doctrines work in conjunction. Indeed, the Brandenburg principle is a central part of the “fortress of doctrinal presumptions” the Court has adopted to safeguard free speech in times of national stress. These principles are essentially additive — to pass constitutional muster, a law must satisfy both the Brandenburg standard (when it is applicable) and the overbreadth, prior restraint, and content-neutrality standards.

Secrecy in wartime

Collins: Secrecy in wartime always raises First Amendment or First Amendment-related issues. In the post-9/11 period, for example, we have witnessed significant restrictions on access to government information under the Freedom of Information Act (FOIA) and related laws. How, in your opinion, is a balance to be struck here? Does “security” always have to trump freedom? If not, why not? Or is there another way to look at this?

Stone: This is one of the most intractable issues in constitutional law. To what extent, if any, does the First Amendment require the government to make information available to the public?

On the one hand, it’s easy to see why the government’s capacity to keep information secret can cripple public discourse. How are citizens to debate the merits of a policy if they don’t know what the policy is or how it is being implemented? On the other hand, if the First Amendment imposes an affirmative duty of disclosure on the government, how is that duty to be defined? Do citizens have a First Amendment right to inspect every government document, attend every government meeting, view every government activity (including prisons and battlefields), unless the government can prove it has a compelling reason to deny such access?

The Supreme Court has dealt with these questions by erecting two powerful presumptions. First, if information leaks out, the government can (almost) never prohibit its further dissemination. Second, the First Amendment (almost) never requires the government affirmatively to disclose information to the public. If there is a theory underlying this two-prong approach, it is that it is difficult for the government to keep information secret for very long. It takes extraordinary measures for the government to preserve confidentiality. Realistically, the government will take such measures only when the reasons for secrecy are compelling. This is surely a crude compromise based on imperfect assumptions, but it may be more practical than asking courts to decide as a matter of constitutional law which of millions of government documents must be disclosed and which of thousands of government meetings must be open to the public.

With respect to the war on terrorism, the government, in my judgment, has insisted on excessive secrecy. The Bush administration’s refusal to reveal the names of the individuals detained after 9/11 and its insistence on closed deportation hearings suggest secrecy run amok. This is not an administration that believes in sharing information with the public. In the long run, that will weaken rather than strengthen the nation. It reflects a distressing indifference to the need for robust and informed public debate and accountable government decision-making.

Collins: Last June, the Senate refused to change a Pentagon policy banning news coverage of America’s war dead as their remains arrive in flag-draped caskets at Dover Air Force Base. What do you make of such wartime policies?

Stone: This follows neatly from your prior question. If a newspaper obtains such a photograph, the government cannot constitutionally enjoin or punish its publication. But the government has no constitutional obligation to allow such photographs to be taken. So, from a constitutional perspective, the issues are fairly straightforward.

As a policy matter, however, they are more complex. On the one hand, the government’s concern is that if Americans see images of flag-draped caskets this will undermine their resolve and weaken their commitment to the war. Such images show with special force the human cost of war. Any administration that wages war quite naturally wants to promote a united, determined citizenry; anything that saps the public’s commitment is naturally seen as endangering the war effort. On the other hand, why should the government be able to make so paternalistic a judgment? If seeing such images would, in fact, undermine the will to fight, is that necessarily bad? Can the government legitimately suppress accurate casualty counts in order not to discourage the public?

One way to think about this problem is by analogy to the law of evidence. In a trial, we often deny the jury access to relevant evidence because we don’t trust jurors to deal with the evidence in a rational manner. We often exclude evidence because we think the jury is more likely to reach the “right” result without the evidence than with it. For example, when a defendant is charged with murder the prosecution ordinarily is not permitted to inform the jury that the defendant was twice previously convicted of assault with a deadly weapon. The evidence is relevant because a person who has committed such assaults is more likely to commit murder than a person about whom we know nothing. But we nonetheless exclude this evidence because we fear that if jurors learn of the prior convictions they will turn against the defendant and convict him even if he is innocent of the crime charged. In effect, we don’t trust the jury to deal with the evidence in a rational manner.

'The Bush administration's refusal to reveal the names of the individuals detained after 9/11 and its insistence on closed deportation hearings suggest secrecy run amuck.'

Similarly, one can argue that the image of flag-draped coffins is so powerful emotionally that citizens will be pulled “irrationally” to turn against the war. A fundamental question, then, is whether the rules of a trial should be the rules of public debate. Why is public debate different from a trial? If we follow the trial analogy, who should decide what information should be kept from the public because we don’t trust citizens to deal with the information in a rational manner?

‘Free speech zones’

Collins: We hear a lot these days about “free-speech zones” as a way of dealing with those who protest against the president, the Iraq conflict, or at political conventions. What is your sense of them? How much of a threat, if any, are they to First Amendment freedoms?

Stone: As I understand the concept, a “free-speech zone” is an area set aside for protesters at a sufficient distance from the president that they cannot endanger the president’s safety. Of course, it is essential for the Secret Service to protect the president. Some physical separation from protesters may be a reasonable precaution. But if citizens are to be kept physically away from the president, this must be done subject to three essential conditions.

First, the separation must be no more than what is necessary to protect the president. Second, the driving concern must in fact be the safety of the president, not the desire to shield the president from criticism or to avoid negative news coverage. Third, the principle must be applied neutrally. People carrying pro-president placards cannot be permitted to be near the president, while those carrying anti-president signs are shunted off to the side.

Collins: Wartime laws affecting First Amendment liberties often have a life after combat has ceased. How, if at all, should this affect subsequent judicial review of such laws?

Stone: The conventional wisdom is that during periods of crisis the Supreme Court will not enforce constitutional rights in the face of government claims of military necessity. Proponents of this view point to such decisions as Korematsu and Dennis. In fact, however, the Court’s record is more mixed. During World War II, the Supreme Court took a firm stand in protecting First Amendment rights when the government sought to deport or denaturalize individuals with fascist or communist sympathies; during the Korean War, the Court held Truman’s seizure of the steel industry unconstitutional; during the late 1950s and early 1960s, the Court played a critical role in helping bring the era of anti-communist hysteria to a close; during the Vietnam War, the Court rebuffed the Nixon administration’s attempt to enjoin publication of the Pentagon Papers; and, most recently, the Court held unconstitutional the Bush administration’s incommunicado detention of “enemy combatants.” In light of this record, we should be careful not to expect too little from the Supreme Court.

As your question suggests, in some situations these issues have not reached the Court until after the crisis was over. This was so, for example, with respect to Lincoln’s suspensions of habeas corpus during the Civil War. After the war ended, the Supreme Court handed down a biting decision in Ex parte Milligan, which placed sharp limits on the authority of the president to declare martial law. In general, one would expect the Court to be more confident in rejecting claims of military necessity after a war is over, than in the heat of battle, and for the most part this has been so. Although such decisions may come too late to prevent violations of civil liberties that have already occurred, they play a critical role in establishing ground rules for the future. Indeed, no president has ever restricted civil liberties in wartime in a way that flies directly in the face of Supreme Court precedent.

Undefined & unending ‘wars’

Collins: You lay quite a bit of importance on the historical claim that our government has “attempted to punish individuals for criticizing government officials or policies” only during times of war. But what if the war — like, say, our “war on terrorism” — is an undefined and unending one? What then? Where does that leave those freedoms otherwise to be safeguarded by the First Amendment?

Stone: This is, of course, an interesting puzzle. Most wartime legislation has been enacted on the assumption that it is designed to address a time-limited emergency. The expectation is that once the emergency is over, the legislation will no longer be necessary. In general, this is how things have worked. Restrictions of civil liberties enacted in 1798, during the Civil War, during World War I, during World War II, and during the Cold War were all eliminated either by judicial decision or legislative and executive action once the conflict was over. Thus, the fear of some civil libertarians that “once we compromise our civil liberties, we lose them forever” has not come to pass.

A wartime situation that theoretically has no time limit, however, poses a very different problem. If the government insists on framing the conflict in that way, then the Court should refuse to consider the restrictions of civil liberties as temporary measures designed to deal with a short-term emergency. It should be especially skeptical of such restrictions and should examine them with particularly careful scrutiny.

Interestingly, the Supreme Court was acutely aware of this issue in its recent decision in Hamdi, in which the Court expressly took cognizance of the fact that the government was effectively claiming the power to detain an American citizen indefinitely. This fact played a significant role in the Court’s decision recognizing Hamdi’s right to a fair hearing on the government’s claim that he was an “unlawful enemy combatant.”

War & religious freedom

Collins: One of the core freedoms safeguarded by the First Amendment is freedom of religion. What has your historical research revealed about abridgments of religion in wartime? And do you think that could become an issue of some moment in our current “war on terrorism”?

Stone: For the most part, freedom of religion has played a subordinate role in wartime conflicts. This is so because in no previous war has the United States defined the enemy in religious terms. In some instances, however, the freedom of religion has been implicated.

During World War I, for example, an important question was whether those who preached pacifism as a religious tenet could be criminally punished for opposing the war. Congress debated this question in its deliberations over the Sedition Act of 1918. It concluded that such preachers were among the most “dangerous” of all dissenters and that the sincerity of their religious beliefs would not constitute a defense.

Similar issues arose during World War II with respect to conscientious objection. Moreover, Jehovah’s Witnesses suffered terrible persecution during World War II because of their anti-war beliefs. They were often harassed and even beaten by angry mobs of “patriots.” The Supreme Court protected the rights of Jehovah’s Witnesses in this era, even going so far as to protect their right not to pledge allegiance to the flag.

The war on terrorism is distinctive insofar as the enemy is defined in part by religion. In that sense, being a Muslim in the United States today might be seen as analogous to being Japanese-American during World War II. This is a very serious issue.

May the government, for example, target Muslim Americans in its anti-terrorism investigations? May it infiltrate mosques? May it spy on Muslim organizations? The right approach to these questions was delineated by Attorney General Edward Levi in his 1976 FBI guidelines, which prohibited the government from infiltrating or otherwise spying on any political or religious organization in the absence of specific evidence of unlawful activity. Sadly, Attorney General John Ashcroft has abandoned the Levi guidelines and opened the door to serious intrusions on religious liberty.

Origins of the book

Collins: What prompted you to write Perilous Times, and how did it evolve? How long did it take to complete?

Stone: In many ways, it was serendipitous. I had taught, thought, and written generally about these issues for many years, but I had never focused on the idea of so overarching or so historical a project. Then, in October 2001, when I announced I would step down after serving eight years as provost of the University of Chicago, a reporter for the university’s newspaper interviewed me about my “legacy” as provost and my plans for the future: “You must be eager to get back to full-time research and teaching. What’s at the top of your research agenda?”

I couldn’t say: “Gee, I haven’t had time to think about that.” So, I blurted out the first idea that came to mind: “I plan to write a book about free speech in wartime.” With a sigh of relief, I thought I’d successfully ducked the matter and could comfortably go back to the drawing boards. But when the article appeared in the university’s newspaper, it prominently featured my “forthcoming” book! I was then inundated with e-mails from colleagues congratulating me on undertaking so timely and important a topic. And, so, I was trapped. My colleagues expected me to write this book, so I did.

Of course, it was also a labor of love. I’ve taught the First Amendment for 30 years and written extensively in the field. This project afforded me an opportunity to delve more deeply into the constitutional and historical issues that had long fascinated me. Initially, I conceived of it as a pure scholarly work aimed at people like me — people who live and breathe the First Amendment. But as I worked on it and talked with others about what I was learning, friends and colleagues encouraged me to write for a more general audience.

That proved to be an interesting challenge, and great fun, as well. My wife and daughters, all non-lawyers, became critically important readers of my drafts, forcing me to clarify, to eliminate legal jargon, and to explain more fully the constitutional concepts and principles. The research and writing took roughly two years from the time I started work (in April 2002) until I had a polished manuscript.

Collins: Perilous Times is a 700-page book. That is a lot of scholarly text for a trade publication. How did Norton come to publish the book, and were other publishers reluctant to do so?

Stone: To be honest, when I first discussed the book with Norton and other publishers, I thought it would be much shorter. When I finally handed in the full manuscript, there was an audible “gasp” from New York. But after reading it, Bob Weil, my editor, and the other folks at Norton came to the view that the subject was worthy of the length, and they were wonderful about moving forward without a hitch. It was a great example of a publisher putting excellence above all else.

Note: See a video interview with Prof. Stone conducted by the University of Chicago Law School.