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Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of policy; and the enemy's perceptions of a divided society may well strengthen its determination to fight on, with still more injury and loss of life on the battlefield. Wars, moreover, always bring a sense of heightened urgency that leads the ideals of rational and deliberative debate to acquire an air of na'vet6. Action, not deliberation, becomes the imperative. In this way, the rationale for an "exception" to freedom of speech in times of war emerges.

Yet, it is widely thought (certainly by those who study and defend civil liberties) that the nation persistently loses a proper respect for civil liberties during these times of national crisis.' A panic sets in; a mob mentality takes hold, which exaggerates the danger from speech, looks for scapegoats for our fears and rage, and inflicts a trail of shameful persecution. The victims of these excesses are usually the weakest and least influential members of the society, although at times even some of the most powerful are not entirely immune. The government may see political advantages, too, in stirring up intolerance, while such an agitated environment can also be useful in settling scores and shoring up one's political base. Most of all, however, excessive intolerance threatens to eviscerate serious public debate about critically important public issues.


Constitutional Law | First Amendment | Law


Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism by Geoffrey R. Stone, Norton, 2004, pp xix, 691.

Originally appearing in the University of Chicago Law Review, 72 U. Chi. L. Rev. 417 (2005). Reprinted with permission from the University of Chicago Law School.