A Prescription for Perilous Times (Reviewing Geoffrey R. Stone, Perilous Times: Free Speech in War Time From the Sedition Act of 1798 to the War on Terrorism (2004))

Authors

Neil S. Siegel, Duke Law SchoolFollow

Document Type

Article

Publication Date

2005

Abstract

In this Essay, I argue that Professor Stone has written an important work of constitutional history, not only because of what he has to say, but also because of the time in which he says it. The tragedy of September 11, 2001 generated reactions by every branch of the federal government, as well as by the general public and a host of public-regarding institutions in American society. Each of those reactions has implicated the balance between liberty and security that historically has been tested in this country during times of crisis. 'Perilous Times' lucidly conveys the nation's accumulated lessons of experience from the Sedition Act of 1798 to recent events in the "war on terrorism," thereby arming Americans with knowledge necessary to grapple successfully with the challenges of our own time. Professor Stone, in other words, offers not just a bracing reminder of historic threats to America's celebrated civil liberties tradition, but also a constitutional compass for current use in a world that has changed in important respects yet remains much the same. Perilous Times tells a story with a balanced, two-fold moral that is sobering yet ultimately affirming of America's capacity to learn from past mistakes and make moral and constitutional progress. In six historical periods, Professor Stone finds that the federal government and the citizenry overreacted, needlessly sacrificing civil liberties at the altar of perceived threats to national security. But in each period, there were heroes-politicians, jurists, journalists, and political dissenters of lower station and great courage-who realized the country was betraying the principles to which it aspires and who summoned the fortitude to speak out. After each episode, moreover, some learning took place; our country returned to a more liberty-friendly equilibrium, with the historical trend pointing in the direction of greater protection of civil liberties. Yet because today's repression does not tend to be the same as yesterday's, our country has difficulty learning the more general lesson that crises lead to repression. By clearly identifying a disturbing historical pattern in which current governmental conduct is implicated, Professor Stone contributes to the project of preventing future repression. I evaluate Perilous Times by asking three questions. First, does the book adequately defend its conclusion that unjustified deprivations of civil liberties have taken place throughout American history during wartime? Second, are Professor Stone's reform proposals likely to succeed by facilitating a more appropriate balance between liberty and security in times of crisis? Third, does Perilous Times offer a useful framework for assessing government actions since September 11? I argue that Perilous Times is excellent in its descriptions and normative assessments of the relevant history, notwithstanding some relatively modest concerns about the empirical sample from which the book draws its conclusions. The lessons of history it develops, I further contend, remain highly relevant in a post-September 11 world. I submit that the book's proposals for reform, however, are less strong. This vulnerability is due not to any failing on Professor Stone's part, but rather to how challenging it proves to significantly reduce the likelihood of repression in times of crisis. Without a further transformation of social values in America, it is difficult to see how his mechanisms will do much to alleviate the pressures he identifies as having caused past excesses. Yet I conclude that this sobering reality should not lead us to lose sight of the intellectual and civic achievement embodied in Perilous Times. Americans often fail to see how current governmental conduct continues a disturbing historical pattern. Ultimately, Professor Stone's greatest contribution in helping to prevent future repression lies in his identification of that trend. Perilous Times equips Americans to integrate the judgments of the court of history, thereby rendering our national community somewhat better able to resist the repressive urge.

Citation

Neil S. Siegel, A Prescription for Perilous Times (Reviewing Geoffrey R. Stone, Perilous Times: Free Speech in War Time From the Sedition Act of 1798 to the War on Terrorism (2004)), 93 Georgetown Law Journal 1645-1679 (2005)