Freedom of Speech in Wartime
IT ALWAYS IS LIMITED
By RODNEY L. MOTT, Director of the School of Social Sciences, Colgate University
Over WGY, Schenectady, N. Y., December 13, 1941
Vital Speeches of the Day, Vol. VIII, pp. 220-221.
A FRIEND'S remark, when I told him the topic of this broadcast, is perhaps typical. He looked at me in surprise and blandly asked, "But how can you talk about freedom of speech in war time?" To his mind, such a subject was a contradiction in terms, as absurd as if I were to talk on Japanese sincerity, or Hitler's truthfulness, or a dry rain. What he had failed to understand was the very simple, but also very true fact that freedom of speech is never an absolute right. It always is limited.
For example, I have no right to cause a panic in a crowded theatre by maliciously yelling, "Fire." Nor do I have a right to slander you or to defame your character. Probably Robinson Crusoe, on his desert island, was the only man who ever enjoyed complete freedom of speech. Of course, that freedom didn't do him very much good for there was no one there to listen to him until Friday appeared—and on that fateful day his freedom became limited. As Justice Holmes once said, "The character of every act depends upon the circumstances in which it is done. . . . When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight."
By freedom of speech, then, we mean merely that free discussion should be hindered as little as possible. We in America believe that it is more dangerous to shut men's mouths than it is to listen to what they have to say. This faith in the value of freedom has served us well. The splendid advance of our scientific civilization would have been impossible if our scientists had been unable to exchange their ideas freely. And many of the improvements in our democratic government, could never have been secured if men had not been able to discuss them with their fellow citizens. In war-time the value of this free exchange of ideas may be even more important. The greater the danger, the greater the need for clear thinking—and for the kind of clear thinking which can only come after a free discussion.
The founders of our nation well knew the necessity of free speech in war-time. They had just been through the long and bitter Revolutionary struggle. They had seen men mobbed because they had conscientious scruples. They had seen Tories exiled for no other crime than holding a different political opinion. They had seen newspapers suppressed because editors dared to criticize the inefficiency of the Continental Congress. They knew that countless lives had been sacrificed because policies had not been tested by criticism.
They had even seen designing men try to divert the enthusiasms of war to serve their own selfish ends. No wonder they were convinced that the best insurance against abuses of power in war-time as well as in peace was a guarantee of free and open discussion.
The Constitution at first did not contain such a guarantee, and it was almost rejected for that very reason. Indeed, it was not accepted until the people were given a solemn promise that a Bill of Rights would be added at once. That promise was fulfilled when the first Congress proposed a series of amendments, ten of which were adopted on December 15, 1791, just 150 years ago next Monday. The very first one of these Amendments reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
You will note that nothing in these words suggests that freedom of speech can be suspended in war-time. In fact, the implication is quite the contrary, and the Supreme Court has often ruled that the Constitution is a protection against tyranny in war as well as in peace. Let me quote two sentences from one of its decisions: "The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by wit of men than that any of its provisions could be suspended during any of the great exigencies of government."
Congress also has generally accepted this interpretation of the Constitution. There were two notable exceptions, however—The first coming only seven years after the adoption of the Bill of Rights. Diplomatic relations with France had been broken at the time and it looked as if we were on the verge of war. The Federalist Party was in power, but it was rapidly losing its popularity with the people, and to bolster its position as well as to silence the opposition, the Alien and Sedition Acts were passed. These acts made it a crime to criticize the President or to say anything which would bring a federal official into disrepute. Instead of strengthening the party in power, the attempts to enforce the sedition acts did just the opposite. The storm of protest which developed contributed in large measure to the crushing defeat of President Adams two years later—a defeatfrom which his party never recovered. President Jefferson promptly pardoned each of the men who had been convicted under the hatred acts and in 1801 this infringement of freedom of speech died an unlamented death.
It was over a century before Congress passed another law of this kind. A new generation had grown up which knew not the dangers of repression. The outraged emotions of the first World War produced a second Sedition Act, which, among other things, made it a crime to criticize the government, or even to advise anyone not to buy government bonds. Under it many innocent and sincere men were jailed because of their opinions. A returned soldier who protested against the defective ammunition and guns which had been furnished the troops was given twenty years. A man in Iowa who dared to circulate a leaflet criticizing his Congressman for voting in favor of conscription was sentenced to the same term. Perhaps the crowning folly was the trial of a young Russian for tossing some leaflets out of a four story window in New York City. These leaflets protested against sending an American expeditionary force against Russia, a country with which we were at peace. As it turned out, the Russian campaign was a complete fiasco, and the needless loss of life in it emphasized the dangers of repression.
To say that the Sedition Act of 1918 was a failure is to put it mildly. Very few traitors and spies were convicted under it, but it did frighten honest people from engaging in a free discussion of war aims. Without doubt this contributed to the confused state of the public mind after the war, including the failure of the people to understand the League of Nations and their inability to make effective use of our military victory. As was the case in 1798, the party which laid hands on liberty of speech was decisively defeated at the next election, and the act was promptly repealed.
These two sedition acts were very different from the statutes which are necessary to prevent interference with the armed forces, to protect them from spies and sabotage, or to penalize insubordination and disloyalty. The federal laws rightly punish any interference with the drafting or recruiting of soldiers, or any attempt to hamper the operation of the military forces. It is likewise a criminal offense to counsel anyone to evade military service, or to entice a soldier to desert from the army or navy.
There is another law, however, which, although it seems reasonable at first glance, might be perverted and used as a new Sedition Act. Frightened by the presence of Communist and Nazi organizations in the United States, Congresslast year passed an act which penalizes anyone who teaches the desirability of overthrowing any government in the United States by force. This act applies to state and local governments as well as to the national government. Whatever arguments there may be for such an act in peacetime, it may become a real menace in time of war. In the hands of politically minded district attorneys and misguided juries it might easily be used to hound innocent people who were merely trying to rid a community of a corrupt political machine. Obviously the act was not intended to prevent comment on the conduct of the war, discussion of war aims, or criticism of war policies, but a wave of public hysteria might push officials into using it to do just that.
In the long run the people get just as much freedom as they really want. If they do not firmly believe in the values of free discussion, they are apt to take matters into their hands regardless of the law. Two lynchings, numerous horse-whippings and an epidemic of tar and featherings preceded the enactment of the Sedition Act of 1918. Unfortunately this lawlessness did not stop when the act was passed, and President Wilson twice called on the country to cease mob violence. The fact is, these zealots may do a lot of harm to the country's war effort. The persecution of innocent persons is certain to cause resentment, and there is no more fertile ground for subversive activity than a widespread feeling of injustice. Furthermore, when laymen set themselves up as amateur spy detectives they usually cause so much confusion that the genuine spies can often escape.
People instinctively sense any weakness in their government. If it is unified, confident in its strength, and willing to respect and enforce constitutional guarantees, that spirit is quickly passed on to the public. But if the government does not trust its people, and fails to protect their rights, public morale is certain to be undermined.
These facts are well illustrated by a comparison in France and England in the dark days of 1940. France had sternly repressed all criticism of the government, and as a result the nation was flooded with rumors—many of them fostered by the enemy—which weakened the confidence of the people in their government and spread defeatism, England, by contrast, insisted on the preservation of her constitutional liberties, and protected the right of free criticism. This policy paid high dividends in the splendid morale of the British people—a morale which is a living tribute to the effectiveness of their method of meeting the emergency. A morale which made their war effort stronger because they safeguarded the basic right of democracy—freedom of speech.