December 15, 2004  ·  Geof Stone

Before moving on to the Civil War, it may be useful to say a few words about the special problems posed by dissent in wartime. Criticism of the effectiveness of the military, the preparedness of our troops, the morality of the war, the brutality of casulaties inflicted on noncombatants, the number of American casualties, the wisdom of our generals, and so on can easily be seen as the highest form of patriotism. Indeed, the basic premise of democracy is that criticism of the government improves the quality of decisionmaking. On the other hand, such criticism can readily be cast as disloyal.

Civil libertarians are often puzzled by this, but they shouldn’t be. Dissent in wartime may improve the quality of decisionmaking, but it may also and at the same time strengthen the enemy’s resolve. An enemy that knows we are divided and uncertain will fight harder than it we are united and resolute. It knows that even if it cannot win militarily, it might win (or at least obtain a more favorable settlement) because of domestic American politics. Thus, for those Americans who are firmly committed to the war, dissenters are acting treasonably because they are encouraging the enemy and arguably putting American lives at risk. Their response to dissenters is essentially, “Can’t you see what you’re doing? You’re jeopardizing American soldiers! Just shut up!”

Moreover, war unleashes profound passions. Thousands of lives are stake. No one whose child or spouse or friend is in combat wants to hear that he or she is risking life and limb for an immoral purpose. And even less are people willing to hear that when the child or spouse or friend is already dead or grievously wounded. There is a powerful need to rally around the troops and to promise that those who have died have not “died in vain.” In such an atmosphere, it is inevitable that dissent will be equated with disloyalty and that the line between the two will be blurred. We have seen some of this even in the current period.

It’s also important to point out a critical feature of free speech. Few people rationally believe that their decision to sign a petition, send an email, or march in a demonstration will have any effect on national policy. Thus, the benefit to them of speaking out is very small. If they have any reason to fear that doing so will land them in jail, or subject them to government questioning or harassment, or threaten their current or future employment, they will quickly decide that it’s not worth the risk to sign the petition, send the email, or march in the demonstration. This is what we mean by “chilling effect.” The danger, of course, is not just that a lone individual will be silenced, but that an entire segment of the population that would otherwise be critical of the government will be stifled, thus mutilating the thinking process of the community.

Has any of this actually happened since 9/11?

  • anon

    do you think the recent rash of criminal prosecutions of reporters who refuse to reveal sources is related to the fact that we’re at war? is it simply a product of the culture encouraged by the bush administration? or just coincidence?

  • Fernando

    Clearly, the issue of minimizing dissention, either by means of some theory based on national patriotism or coercion, conflicts with the First Amendment. It would be interesting to read a legal analysis showing that �crying fire in a theater� is equivalent to �dissenting in the public domain�. That would sort of up-date Holmes�s analysis in a new context. Doing so would place limitations to the freedom of expression when such language is rendered dissent in public domains. But given our technological capabilities, with citizens about in foreign lands, there would have to be provisions set for those dissenting beyond our actual material borders–per the argument presented in the blog. Supposing such an account is coherently propounded, i.e., where freedom of expression is limited due to a legal analysis showing that �crying fire in a theater� is equivalent to �dissenting in the public domain,� then the subsequent issue would involve setting the scope for such a norm. We would have to deal with cases, for example, where an American in a Swiss cafe who happens to dissent by way of a WiFi internet account through a mass e-mail bound to US recipients, etc. Would such an individual breach the prohibition to dissent?

  • Joseph Pietro Riolo

    It seems that you (Professor Stone) missed the forest
    for the trees.

    Critics do not usually do criticism because they love
    truth or the freedom of speech. They usually do it
    because it sells. Or, they do it for their selfish
    motivations (such as personal agenda or political
    goals or whatever).

    This does not mean that I refuse to listen to critics
    but I have to separate the criticism for the sake of
    criticism from the criticism for the sake of money or
    selfish motivations. Those who do the latter have
    smeared the noble image of the freedom of speech but
    that is always the price of any freedom.

    You need to look at the whole forest before you arrive
    at some silly conclusions.

    Joseph Pietro Riolo

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Alexander Wehr

    T Joseph Riolo:

    I offer criticism all the time of all establshments. I gain no money, and often gain low opinion by members of said establishment trying to affect change which will likely not benefit me.

    It has nothing to do with profit. Dissenters want to see better from the objects of their criticism.

  • http://www.paulhebble.net:8000/ Paul

    Dissent in wartime [...] may also and at the same time strengthen the enemy’s resolve

    Howso? Can you give examples? When you just assert this without even a shallow examination of the claim, it looks like you’re paying unthinking lip service to a common cultural myth (or throwing a bone to the other side out of reflexive, undeserved even-handedness?). Perhaps rather than making a factual claim, you meant to point out that supporters of wars tend to believe this?

    My expectation (no more factually-supported than yours, I admit) would be that if someone takes up arms against the United States military, they are probably firmly convinced of the rightness of their cause, and thus already have plenty of “resolve,” regardless of domestic US politics.

  • Max Lybbert

    Paul, my understanding is that during the Vietnam War (before my time), some celebrities were permitted to visit American POWs (who were cleaned up for the visits), and they often returned home speaking out against fighting such nice Communists. I believe this particular dissent strengthened the North’s resolve, and did help sway popular opinion enough that the US eventually withdrew from Vietnam.

    During the Civil War, Jefferson Davis wrote an editorial in the New York Times that showboated his generals’ abilities (including the fact that Grant’s most recent tactics had cost more men than Lee even started with — something somewhat irrelevant, since Grant’s forces still outnumbered Lee’s and it wasn’t all that long until Appotomax). This information was meant to break Union resolve in fighting the Civil War. It also came at a time that General Sherman was engaged in tactics that would be clearn violations of the Geneve Conventions had they existed, in an effort to break Confederate resolve.

    In many cases the “defense” only has to get the other side to stop fighting. The “offense” (generally the invader) has to destroy the defense. Dissent can have the effect of getting an army to give up on trying for victory.

    That isn’t to say that I oppose dissent. I think mindless, Michael Moore-style dissent generally discredits the dissenters. I also know that dissent can lead to reduced recruiting success for the military, thus driving the country to a complete defeat:

    I remember, just before the draft lottery that chose my number back in the Vietnam era, a professor asked me whether I would serve in Vietnam. I said, “Not if I can help it.”

    “Why not?” he said.

    “Because we’ve already decided to lose. Why should I risk my life for that?” Nixon had been elected partly on the basis of a promise to get out of Vietnam. Having made that promise, he was no longer capable of negotiating a peace with the North Vietnamese that differed in any significant way from our complete surrender.

    After all, why should they give in on any point, when their opponents in the negotiation had already promised to leave Vietnam regardless of whether the North Vietnamese gave concessions or not?

    I think disenters can act intelligently. For instance, although the Iraqi war has gone as well as can be expected (“what? they’re fighting back?” Come on! What were you expecting?), Rumsfeld ought to be canned for the same reason Paul O’Neill was, to imply that the Presidnet is serious about doing something.

  • Miles

    Joseph: Just how do we “separate the criticism for the sake of criticism from the criticism for the sake of money or selfish motivations”? I submit that it is not always obvious — particularly when it comes to “selfish motivations”. (Does ego gratification count as a selfish motivation?) Does the fact that someone has a material interest in the matter at hand mean that that they cannot pose a valid argument? Certainly one should consider the motivations (to the extent they can be known) of the critic, but are any of us without “selfish motivations” when it comes to defending the treasure of free speech?

  • Geof Stone

    Reply to anon:

    For my views on the reporters’ privilege issue, see the recent weeklong debate I had on this question on http://www.legalaffairs.com

    Geof Stone

  • Geof Stone

    Reply to Fernando:

    Holmes himself used the example of the “false cry of fire in a crowded theater” as the jumping off point for his analysis of dissent in wartime. (Indeed, the example was offered in a case involving the prosecution of an individual for distributing antiwar leaflets during World War I.) The logic is as follows: Surely, the state can punish the false cry of fire. Why is this so? Because it creates a “clear and present danger.” Thus, that is the test for when speech generally can be punished. There were at least two problems with this reasoning. First, Holmes didn’t notice that what made his example work was that he assuming the “cry” was false. Suppose the cry of fire were true. What then? And if we can’t punish a true cry of fire in a crowded theater, even though it causes a mad rush for the exit, what about true criticism of the government? Second, although we may think the phrase “clear and present danger” is self-defining, and refers to situation akin to Holmes’s example, where the danger is extremely probable and very immediate, the phrase proved sufficient plastic that the Court managed to turn it into a general balancing test, which ultimately proved disastrous, as we shall see later in this blog.

    Geof Stone

  • Geof Stone

    Reply to Paul:

    One of the most difficult tasks of a government in wartime is maintaining a nation’s continuing willingness to make the sacrifices that war demands. As casualty lists mount, as years goes by, as the nation’s infrastructure and economy are devastated, it becomes more and more of a challenge to keep people focused and determined. This is a huge problem in many wartime situations. This was especially evident in U.S. history in the Civil War and in the Vietnam War. The problems arise for the enemy. And the more confident a nation is that it’s opponent is on the verge of collapse, the more willing its people are to continue the struggle.

    Geof Stone

  • http://br anon jr.

    Prof. Stone-

    I know you are very busy and that this forum is dedicated to free speech and wartime, but I would love to hear your opinion on the recent FCC fines. In short, how do we begin to draw the line between protecting our children from things we would rather have them not see or hear, and the obvious chilling effect FCC fines have (the saving private ryan non-airing as an example). Personally, I think we should dispand the FCC and allow technology filters controlled by parents and general content labels to do the work. You can simply direct me to a relvant article if you would like.

  • Geof Stone

    Reply to anon re FCC:

    I couldn’t agree more. Get the government out of the business of censoring television and radio, and leave the matter to parents, just as we do with cable, newspapers, magazines, and books.

    Geof Stone

  • Jardinero1

    Mr. Stone,

    When are you gonna talk about the fourth, fifth and sixth amendments? Those are the only amendments, legally and practically, which have been affected by the “war on terror”.

    I understand the concept of “chilling effect” on free speech but that’s largely a cultural and psychological problem. I think the first amendment has held up pretty well, practically, legislatively and in the courts.

  • Ed Lyons

    I am certain that there has been a chilling effect during the past three years.

    I believe in the value of dissent – but I think we as a society have an interest in promoting high-quality dissent and outrage. It’s one thing to disagree with the prosecution of a war or changes in legal protections. But I think sometimes, activists are joining the other side. It’s one thing to organize rallies against the Iraq war. But what of the Americans who flew to Baghdad to be human shields to protect Saddam? What about college protestors who have signs that literally root for the Iraq insurgents? I have firsthand seen protestors who want to see higher American casualties so that we pull out sooner.

    I agree wholeheartedly that dissent is required. But not all dissent is valuable. I do not have the wisdom to know where the line is. But apparently, neither do some of the dissenters.

  • kt

    “They do it because it sells”

    Huh. I usually offer criticism because i like the beauty of the best solution. As a Christian, moreover, it gives me the heebie jeebies to think that people would thing me motivated primarily by money.

    Jesus told me to love god above material things. I don’t know what he told the right wingers. Part of God to me is truth, as best we are able to understand it.

    And if you believe in eternal life and salvation, there’s no real reason not to speak up and speak the truth. The most authority can do is kill you, or perhaps torture you for a bit, but you won’t die forever, and God loves you. I suppose that’s what makes people like Martin Luther, Ghandi, Dietrich Bonhoeffer and Martin Luther King, Jr. dangerous.

  • Relentless

    I find it odd and a bit annoying that people are so willing to lump all forms of “dissent” into one singular set as if they were merely different shades of the same hue.

    To claim dissent might bolster the enemy makes sense if that dissent is something along the lines of a soldier painting a peace sign on the side of his tank. The message in this case clearly would be one where our combatants were expressing a desire to stop fighting.

    However, it is a bit silly at best (or quite dubious if you have a more cynical view of the administration) for them to argue that dissent bolsters the enemy when it comes in the form of citizens demanding the resignation or removal of Donald Rumsfeld on the grounds of his incompetence. The message here is not a desire to stop fighting, it is a desire to stop fighting so poorly… or to stop fighting for certain goals that have proven to be poorly chosen.

    Even a soldier can offer dissent without damaging our morale or inflating the morale of our enemies. The Rumsfeld press conference which allowed a soldier to demand answers regarding the substandard uparmoring of vehicles in Iraq boosted the morale of our forces and the resolve of our country to fight well, no soldier in our armed forces would sag at the thought that their concerns were being heard and responded to…. What damaged morale was not the question that was offered, the damage was all caused by the “answer” that Rumsfeld responded with.

    Dissent comes in many forms. At its best, during wartime, dissent is about correcting our goals, adjusting our methods, removing those who are unable and installing those who are best qualified to create a war machine that is “capable” and “morally supportable” by those who are part of it and those who it is an extension of.

    If it were not for those who dissent, the rest of the world would view the United States as a place where people have a world view that is unanimous, bent on nation building, believing it had moral certainty and yet entirely incompetent at carrying out even the most basic of wars against a decidely outmatched opponent.

    Id much rather the world see us as a country being lead in a poor direction by a radical minority of religious zealots… with a strong and passionate opposition that seeks to bring reality back into focus while steadfastly seeking to undo both the incompentence of our war machine and the short sightedness of our current leadership.

    None of the above endangers our troops or emboldens our enemies. Failing to do the above endangers our place in the world and emboldens our friends to become our enemies.

  • Alex

    I think free speech and the ability to dissent have been heavily restricted in the name of the government’s war on terror. Do you recall the “free speech zone” at the DNC? As far as I know, the entire US is a free speech zone. Do you remember hearing about the dissenters that got into (legally) the RNC and chanted things like “No war!” These folks were removed and interrogated for hours. A peace protestor getting treated like a terrorist? I can’t think of a more blatant example of the powers that be using terrorism to advance their agenda.

  • Joseph Pietro Riolo

    To Alexander Wehr and Miles,

    I was too carless in my too terse comment. I was disputing Professor
    Stone’s position that dissenters are helpful to the society for
    they can improve the quality of decisionmaking. What he did not
    realize or did not bother to say that not all dissenters are
    sincere. There are many individuals like yourself that express
    their opinions that come from their heart. That is wonderful
    and that should be encouraged here in this country. However,
    not all critics in media are not like that. These critics are
    using the power of media and criticism as means to accomplish
    their ends that fit their positions instead of for the sake of
    truth or justice. They seek for anything in the military system
    - anything, even down to paper clip – that they can find to
    criticize so that they have something to say – something to fill
    in newspaper, something to fill in the air – not to improve the
    quality of decisionmaking, but to gain more money and perhaps,
    to win prizes.

    Other thing that we have to keep in mind, to keep everything
    in perspective, is that the perilous times were not the only
    times that the freedom of speech is restricted. The freedom
    of speech is even restricted during the non-perilous times.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • http://www.democracynow.org/streampage.pl Tayssir John Gabbour

    Dan Rather explained (from his view) why there was a culture of media self-censorship in the wake of 9-11. [transcript, video]

    “It’s an obscene comparison but there was a time in South Africa when people would put flaming tyres around people’s necks if they dissented. In some ways, the fear is that you will be neck-laced here, you will have a flaming tyre of lack of patriotism put around your neck. It’s that fear that keeps journalists from asking the toughest of the tough questions and to continue to bore-in on the tough questions so often. Again, I’m humbled to say I do not except myself from this criticism.”

    I personally believe that our national literature has been damaged by decades of weakening the media’s watchdog position, and building it up will take time using the net. However, politicians are scrambling for reasons to close it up, as Former CIA Director Tenet did in a meeting where the press was excluded:

    “I know that these actions will be controversial in this age when we still think the Internet is a free and open society with no control or accountability, but ultimately the Wild West must give way to governance and control.” — Former CIA Director Tenet, in a meeting where the press was excluded

    As for normal non-media citizens not dissenting, I probably agree that the US has such wonderful levels of free speech that there’s little pity for us not speaking our minds. On the other hand, at a software developers’ conference at Oslo, I heard a lot of people were criticizing foreign policy, which they couldn’t do at the workplace. (You can imagine businesses have an incentive to punish people for airing their opinions, on the perhaps naive fear of losing productivity.)

    Joseph Pietro Riolo, you claim that not all dissenters are sincere. That is a second-order problem, which is not interesting to me because agreers are also insincere. What in fact happens is the least articulate dissenters are given the media spotlight, so it may seem to you that dissenter insincerity is somehow higher.

    Jon Stewart argued on CSPAN [pdf transcript] that what we need is a media organization which is like Fox News in that it’s willing to be biased, but “geared towards NO BULLSHIT”:

    “Why can�t you hire people that care about the truth? You know them, I know them, they�re good. You got people on blogs that are fact-checking as things happen. Some of those people are conspiracy theorists, some of them are really smart — have somebody at the center of it, who can be an arbiter of what�s real and what�s not. And make that network reactive. Fox is reactive. That�s why it�s working. Find one that is reactive to the devastating game of strategy that�s being played in Washington. I think it would make a shitload of money, and not only that you�d be able to sleep at night.”

  • oliver

    I’m surprised we’re talking about such abstract consequences as the national will for war and the enemy’s resolve. My notion of “dissent” includes civil disobedience and direct action like occupying buildings and lying down on railroad tracks. To the extent our nation’s army isn’t operating completely independent of supplies and instruction from home, clearly the people could shut down a war with that kind of dissent, which I think is what a lot Vietnam era dissenters were working toward. So why aren’t we talking about physical interference with the war effort? Would these acts be prosecuted under some other category of behavior besides dissent? “Trespassing”? “Refusal to disperse”? I know acts besides speech itself are eligible for free expression….

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