The United States has a long and unfortunate history of overreacting in moments of perceived crisis. Time and again, we have suppressed dissent, imprisoned and deported persons thought to be disloyal, and then later regretted our actions. Three episodes in American history—the Civil War, World War II, and the War on Terror—provide useful lessons for the challenges we face today.
In light of the free speech issues now occurring in Hong Kong, it is useful for Americans to understand our own struggles to protect and promote the values embodied in our First Amendment guarantee of “the freedom of speech, and of the press.” We Americans pride ourselves on our national commitment to freedom of speech. It is, we say, central to our history, our culture and our aspirations. In truth, though, our record of protecting the freedom of speech, especially in times of real or perceived crisis, has often been dismal.
At such moments, Americans have too often allowed fear and fury to get the better of them. Time and again, we have suppressed dissent, imprisoned and deported persons thought to be disloyal, and then later regretted our actions. But then we do it again. In the discussion that follows, I will briefly explore these issues in three representative episodes in American history: the “Half War” with France in 1798, World War I, and the Cold War.
As we shall see, there are important lessons to be learned from this history. One lesson is that the pressures existing in times of perceived crisis naturally cause citizens to demand protection from enemies—both real and imagined. Another lesson is that government officials often act too quickly to acquiesce to those demands, even if they know that the demands are unnecessary and unreasonable. And a third lesson is that political leaders often exploit the fears and anxieties of citizens for partisan political advantage.
The Sedition Act of 1798
The period from 1789 to 1801 was a critical era in American history. In a climate of fear, suspicion and intrigue, America’s new Constitution was put to a test of its very survival. At the time, the nation’s first two political parties were engaged in a bitter political struggle.
The Federalists, led by Alexander Hamilton and John Adams, were concerned primarily with strengthening the nation economically, preserving social stability, enhancing federal power, and ensuring the nation’s national security. They were deeply distrustful of the common man and believed that the nation’s economic elite should hold the reins of governance. In contrast, the Republicans, led by Thomas Jefferson and James Madison, were distrustful of a strong federal government and were less concerned about social stability and security than with individual liberty.
These two groups eyed each other with great suspicion and animosity. The Federalists had essentially controlled the nation from the beginning but in the election of 1796 John Adams had defeated Thomas Jefferson by a scant 3 electoral votes (71 to 68). There was thus great uncertainty and anxiety as people looked ahead to the election of 1800. The Republicans did not trust the Federalists, and the Federalists did not trust the Republicans. Each thought that the other would take the nation in dangerous and destructive directions.
Against this background, in 1798 the United States found itself embroiled in a European war that then raged between France and England. A harsh political debate divided the Federalists, who favored the English, and the Republicans, who favored the French. The Federalists were then in power and the administration of President John Adams initiated a series of defense measures that brought the United States into a state of undeclared war with France. The Republicans fiercely opposed these measures, leading the Federalists to accuse them of disloyalty. President Adams, for example, declared that the Republicans “would sink the glory of our country and prostrate her liberties at the feet of France.”
In this environment, and over the strong objections of the Republicans, the Federalists enacted the Sedition Acts of 1798, which prohibited the publication of “any false, scandalous, and malicious writing” against the government of the United States, the Congress, or the President, with intent to defame them or bring them into “contempt or disrepute.”
This was a stunning development, given that only eight years earlier the nation had adopted an amendment to the Constitution that forbade Congress to make any “law abridging the freedom of speech or of the press.” The Federalists argued, however, that every government necessarily had the authority to “preserve and defend itself against injuries and outrages which endanger its existence,” and insisted that, faced with an external threat, the people must be unified in support of their leaders.
The Republican James Madison responded that the Sedition Act violated the First Amendment, because it embraced the “exploded doctrine ‘that the administrators of the Government are the masters, and not the servants, of the people.” The Republicans maintained that, even in times of sharp division, free and open debate is essential to self-government. But the Federalists had the votes.
What the Republicans also understood that the real reason for the Sedition Act of 1798 had less to do with a possible war with France than with the election of 1800. Indeed, the Federalist enforcement strategy was aimed directly at that election. Its objective was to silence every leading Republican newspaper and critic as the contest between Adams and Jefferson drew near. One Republican congressman, Matthew Lyon, for example, was prosecuted and convicted for declaring that under President Adams “every consideration of the public welfare” was “swallowed up in a continual grasp for power.” Another Republican, James Callender, was convicted for accused Adams of contriving “a large standing army, an additional load of taxes, and all the other symptoms and consequences of debt and despotism.”
Despite these efforts to stifle criticism of the Adams administration in the guise of protecting the national security, the Federalists’ plan backfired. As it turned out, the American people were outraged by the Sedition Act, and Jefferson handily defeated Adams in the pivotal presidential election of 1800.
World War I: The Espionage Act of 1917
When the United States entered World War I in April 1917, there was strong opposition to both the war and the draft. Many citizens argued that the war raging in Europe did not threaten any vital interests of the United States and that the nation’s real goal in entering the war was not to “make the world safe for democracy,” as President Woodrow Wilson proclaimed, but to protect the investments of munitions dealers and armaments manufacturers who made millions off the War. President Wilson had little patience for such dissent. He warned that such disloyalty “must be crushed out” of existence and that disloyal individuals had no “right to civil liberties.”
After declaring war, Congress quickly enacted the Espionage Act of 1917, which made it a crime for any person to “cause insubordination, disloyalty, or refusal of duty in the military forces of the United States.” Although the Espionage Act was not intended to suppress dissent generally, aggressive federal prosecutors and compliant federal judges soon transformed it into a full-scale prohibition of seditious utterance.” The federal government prosecuted more than 2,000 individuals for allegedly disloyal or seditious expression, and in an atmosphere of fear, hysteria and clamor, most judges were quick to mete out severe punishment—often 10 to 20 years in prison—to those who criticized ther war or the draft. The result was the suppression of virtually all genuine debate about the merits of the war.
And where was the Supreme Court in all this? In a series of decisions in 1919 and 1920, the Court consistently upheld the convictions of individuals who had agitated against the war and the draft—individuals as obscure as Mollie Steimer, a Russian-Jewish émigré who had distributed anti-war leaflets in Yiddish on the lower East Side of New York, and as prominent as Eugene V. Debs, who had received almost a million votes as the Socialist Party candidate for President in 1916.
Over the next half-century, the Supreme Court overruled every one of its World War I decisions, holding in effect that every one of the individuals who had been imprisoned or deported in this era for his or her political dissent had been punished for speech that should have been protected by the First Amendment.
The Cold War: The Era of McCarthyism
As World War II drew to a close, the nation moved almost seamlessly into what came to be known as the Cold War. The Berlin blockade, the fall of China, the Soviet atomic bomb, the Korean War, and the Cuban missile crisis were not a string of independent events, but a slow-motion hot war, conducted on the periphery of rival empires. During this era, the nation demonized members of the Communist Party. Joseph McCarthy, Richard Nixon, J. Edgar Hoover, the American Legion and a host of political opportunists all fed—and fed upon—the image of the domestic Communist as less than a full citizen of the United States.
The long shadow of the House Committee on Un-American Activities fell across our campuses and our culture. In hearings before HUAC, such prominent actors as George Murphy and Ronald Reagan testified that the media had been infected with sly, un-American propaganda. Fear of ideological contamination swept the nation like a pestilence of the national soul.
Hysteria over the Red Menace produced a wide-range of federal and state restrictions on free expression and association. These included extensive loyalty programs; emergency detention plans for alleged subversives; pervasive webs of federal, state and local undercover informers to infiltrate dissident organizations; legislative investigations designed to harass dissenters and to expose to the public their private political beliefs and associations; and direct prosecution of the leaders and members of the Communist Party of the United States.
A good example was the federal loyalty program enacted during the Truman administration. This program defined as “disloyal” any sympathetic association with any organization “designated by the Attorney General as Communist, or subversive.” The implications were clear. The Attorney General’s list initially encompassed seventy-eight organizations, but quickly swelled to more than 250, including, for example, the International Workers Order, a fraternal benefit society that specialized in low-cost insurance, and the Joint Anti-Fascist Refugee Committee, which provided relief for refugees of the Spanish Civil War.
Inclusion of an organization on the Attorney General’s list was tantamount to public branding. Contributions dried up, membership dwindled, meeting places disappeared. The greatest impact of the list, however, was on the freedom of American citizens. Because the criteria for listing were vague and undisclosed, because organizations had no right to contest their listing, and because new groups were constantly being added to the list, individuals had to be wary of joining any organization. The only “safe” course was to join nothing.
Because of the elusiveness of the concept of “disloyalty,” no federal employee or prospective federal employee could ever consider herself exempt from the perils of investigation. Was it disloyal to advocate disarmament, to argue that the Communist Party should be legal, to subscribe to the Communist Party newspaper, to read books by “Communist” authors? Any slip of the tongue, any unguarded statement, any criticism of government policy, could lead to one’s undoing. The anonymity of informers left every individual open to fools, schemers, paid informers, scandalmongers, and personal enemies.The only sane approach was to keep one’s head down, and never look up. As one government employee tellingly remarked, “If Communists like apple pie and I do, I see no reason why I should stop eating it. But I would.”
The key Supreme Court decision in this era was Dennis v. United States, in which the Court in 1951 upheld the convictions of the leaders of the American Communist Party for allegedly conspiring to advocate the violent overthrow of the government. Over the next several years, the Court clearly put its stamp of approval on an array of actions we today look back on as models of McCarthyism.
Eventually, however, the Court began to take a more critical look. Over the next decade, the Court constrained the power of legislative committees to investigate political beliefs, invalidated restrictions on the mailing of Communist political propaganda, limited the circumstances in which an individual could constitutionally be denied public employment because of her political beliefs or associations, and restricted the authority of a state to deny membership in the bar to individuals because of their past Communist affiliations. Although the Court proceeded in fits and starts during this decade, in the end it played an important role in helping bring this sorrowful era to a close.
What can we learn from this history? I would like to offer three observations:
First, the United States has a long and unfortunate history of overreacting in moments of perceived crisis. In each of these examples, and in many others— including the Civil War, World War II, and the War on Terror—we allowed our fears to get the better of us.
Second, it is useful to note the circumstances that have tended to produce these abuses. They invariably arise out of the combination of a national perception of peril and a concerted campaign by government officials to promote a sense of national hysteria by exaggeration, manipulation, and distortion. The goal of the government in fostering such public anxiety may be either to make it easier for it to gain public acceptance of the measures it seeks to impose or to gain partisan political advantage, or, of course, both.
Third, the central challenge is to figure out how to make use of the knowledge that we are likely to make bad and unjust decisions in times of fear and uncertainty. The problem is that, even if we know that, when each new situation arises we tend immediately to assume that it is different from those that preceded it and that even though people may have acted excessively in the past, our actions in the present seem reasonable.
The single most important element in learning how to address this dilemma is to develop a culture of civil liberties, in which people understand their history, including the risks and tendencies that plague us as a democracy. In this culture of civil liberties, individuals would understand the importance of being skeptical about government claims of “necessity” and of political leaders who try to whip up a sense of hysteria. People must learn to approach demands to restrict the civil liberties of others with a strong presumption against it. Restricting liberties should be a last, not a first, resort. We should demand that the government prove to us they have done everything reasonable to keep us safe before it starts locking people up because of their national origin, or detaining them without giving them access to a court, or punishing them up because they have said things that anger the President.
There is no easy prescription to protect against these dangers. To strike the right balance, a nation needs judges who will stand fast against the furies of the age; members of the press and the academy who will help citizens see the issues clearly; public officials with the wisdom to know excess when it exists and the courage to preserve liberty when it is imperiled; and most important of all an informed and tolerant public who will value not only their own liberties, but the liberties of others. That, indeed, is what democracy is all about.