Free Speech in Wartime


Peilous Times: Free Speech in Wartime by Geoffrey StoneLess than seven years after adoption, the First Amendment to the U.S. Constitution was subjected to “perhaps the most grievous assault…in the history of the United States,” according to Geoffrey Stone, author of Perilous Times: Free Speech in Wartime. Stone is talking about the passage of the Sedition Act in 1798.

The Act made it a crime to “write, print, utter or publish…any false, scandalous and malicious writing…against the government of the United States, or either house of the Congress…or the President of the United States, with intent to defame…or to bring them…into contempt or disrepute…” A highly partisan piece of legislation, Congress passed this law while facing a possible looming war with France and the Federalists who controlled the government wanted to keep the nation unified.

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The first person prosecuted under the Sedition Act was a Republican Congressman. His name was Matthew Lyon, and he started his life in North America as an indentured servant. Definitely not a part of the Federalist ruling class and very controversial in Congress, Lyon was made an example of, for statements criticizing the Adams Administration’s handling of the public’s business. He was “prosecuted and convicted by a hand-picked Federalist jury in Vermont and sentenced to jail for a period of four months.”

In 1798, Lyon successfully ran for reelection to Congress while in jail. Over a dozen other Republicans (and no Federalists) were prosecuted under The Sedition Act, mostly editors. The Sedition Act expired on the same day that Thomas Jefferson became President in 1800 and for the next 60 years, there were no federal legislative efforts to restrict free speech.

During the Civil War, President Abraham Lincoln did suspend the writ of habeas corpus several times and many people were detained because of their speech, often for very short periods of time. Additionally, military officials briefly closed down hundreds of newspapers around the country.

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According to my guest, “Lincoln’s own view on these activities was quite interesting. He himself never actually called for the arrest of any person because of his expression. He never directly ordered any person to be arrested, and for the most part, he regarded the arrests of individuals by military officials, when the basis for the arrest was speech, as unwarranted and a problem and something that he regretted. To his credit, he was thoughtful about this issue and did not believe that the government should be acting in the way it did during the Sedition Act controversy. On the other hand, Lincoln can clearly be faulted for not having taken a more decisive stand in ordering his generals, essentially to ‘knock it off’…But I think it’s fair to say that Lincoln’s approach to all of this, was quite different from that of the Federalists in 1798. He did not think that it was a good idea to be restricting speech. He was subjected to more vitriolic criticism than any president in American history…for the most part he tolerated that in good grace and without a sense of anger or political manipulation.”

The Civil War era remains the only war, declared or not, in which the U.S. government did not have an active legislative effort to silent dissent. In fact, after 1798 Congress made no legislative attempt to limit political speech until 1917, when President Woodrow Wilson sought passage of the Espionage Act of 1917.

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The justification was that “there was a lot of opposition to World War I and Wilson therefore felt he needed a way to prevent that opposition from being voiced.” In the Espionage Act and the Sedition Act of 1918, President Wilson explicitly sought “very powerful legislation that would effectively make it a crime for any person to criticize the government, the war, the draft, the flag, the Constitution, or the uniform of the United States.”

The range of political discourse in the United States one hundred years ago was far greater than it is today. There were large movements organizing socialists, communists, anarchists and populists. But after these two pieces of legislation passed, the U.S. public mood became “repressive to a degree that is hard for contemporary Americans to imagine.” Listen to all three segments to hear Geoffrey Stone talk in far greater detail about how the First Amendment was treated in wartime during the first 140 years of U.S. history.


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