Geoffrey R. Stone

Civil Liberties in Wartime

I have a simple thesis: In time of war—or, more precisely, in time of national crisis—we respond too harshly in our restriction of civil liberties, and then later regret our behavior. To explore this thesis, I will briefly review our experience in 1798, the Civil War, World War I, World War II, the Cold War and the Vietnam War. I will then offer some observations.

Content-Neutral Restrictions

The content-based/content-neutral distinction plays a central role in contemporary first amendment jurisprudence. This article explores the nature of content-neutral review.1 Part I examines the mass of doctrine developed by the Supreme Court and identifies three distinct standards that the Court employs to test the constitutionality of content-neutral restrictions. Part II explores the theoretical and pragmatic bases of the Courts content-based/contentneutral distinction. Part III identifies the specific concern that most centrally defines the Courts analysis of content-neutral restrictions and examines the three distinct standards of contentneutral analysis in the light of that concern. Part IV explores a number of secondary concerns that tend in practice to alter the standards of content-neutral review. The primary goal of this article is to explain, to the extent possible, the Courts content-neutral jurisprudence in terms of a coherent, principled set of concerns and to identify those specific decisions that cannot be explained in such terms.

Discussion: Above The Law— Research Methods, Ethics, and The Law of Privilege

In Anticipating Law, Palys and Lowman set forth the rationale for a “researcher-participant privilege” and advise scholars how best to preserve the confidentiality of their research in the face of a legal system that has not looked kindly on such a privilege. Although I am inclined to agree with Palys and Lowman that a researcher-participant privilege would, on balance, be beneficial, the case for the privilege is hardly self-evident. Moreover, the advice Palys and Lowman offer researchers in the absence of such a privilege is, in my judgment, unwise. I will briefly address both of these points.

Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled

In his quite brilliant 1917 opinion in Masses Publishing Co v Patten,1 Judge Learned Hand set forth a novel interpretation of the Espionage Act of 19172 that has had enormous impact on our understanding of the First Amendment. In crafting this opinion, Judge Hand made clear that he was not holding the Act unconstitutional, but was merely construing it against the background of our longstanding commitment to the freedom of speech. Judge Hand adopted this approach in no small measure to deflect the vehemence of what he knew would be a harshly negative reaction to his decision. As a key step in his analysis, Judge Hand reasoned that -in light of our history, values, and tradition-it would be unwarranted to attribute to Congress an intention to enact a law that would have a broadly suppressive effect on free speech without an unequivocal statement of its purpose to that end. I have always assumed that this was merely a ploy to enable Judge Hand to cast his opinion in terms of statutory construction rather than constitutional compulsion, and that is certainly the conventional wisdom.3 On examination, however, it turns out, to my considerable surprise, that Judge Hand was right. Congress did not intend the Espionage Act to have the severely repressive effect attributed to it by the federal courts during World War I. This was a judicial, rather than a legislative, development. This sheds important new light not only on Judge Hands opinion in Masses, but also on our understanding of Congress, the courts, and their respective roles in the evolution of one of the most repressive periods of American history.

Understanding Supreme Court Confirmations

My teacher and colleague Philip B. Kurland believed deeply in reasoned discourse. He foundedThe Supreme Court Review fifty years ago in no small part as a forum to promote such discourse—even on the most contentious issues of the day. I have little doubt that, if Phil were here today, he would be utterly appalled at the present state of the Supreme Court confirmation process. Conventional wisdom says that the confirmation process for Supreme Court Justices is now terribly broken. The prevailing assumption is that the process has become so polarized and so politicized that nominees feel they must mask their views from members of the Senate in a way that makes informed consideration impossible. As one commentator has observed, many “Americans would like to think the manner in which people become justices on the Supreme Court is governed by merit and objectivity,” but “recent events suggest something very different.” Supreme Court nominations, it is said, “have become public pitched battles in-

In Opposition to the School Prayer Amendment

OF THE UNITED STATES 1981, at 52-53 (102d ed. 1981). 46 Prepared Testimony of William VanAlstyne on S.J. Res. 199 Before the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 7-9 (Sept. 16, 1982) (on file with The University of Chicago Law Review). For a similar argument, see Cahn, supra note 41, at 993-94. 46 Kauper, Prayer, Public Schools and the Supreme Court, 61 MICH. L. REV. 1031, 1065 (1963); see also Kurland, supra note 30, at 30-31.

Ronald Coase's First Amendment

Among his many interests, Ronald Coase was curious about how commercial advertising fit into First Amendment jurisprudence. Noting that the First Amendment protects “the freedom of speech,” Coase puzzled over why most jurists and scholars assumed that commercial advertising was not entitled to the same constitutional protection as other forms of expression. Indeed, invoking the standard justifications for the constitutional protection of free speech, Coase could discern no principled basis for the lesser degree of protection traditionally accorded commercial advertising. In his writings, Coase speculated that this doctrine could not be justified in terms of the standard reasons for protecting free expression, but was more likely the product of the particular values and biases of those who made the law. This article examines Coase’s thinking about the First Amendment to test both the wisdom of the insights and how the Court itself evolved over time in its understanding of First Amendment doctrine.

War and Speech

Geoffrey R Stone finds that the public’s right to know has been the greatest casualty of the Bush era

Intelligence as Governance

literature that began to emerge in the early 1970s in response to congressional committee revelations of widespread intelligence abuses. The author, Frank Donner, is a lawyer who admits to a long-standing obsession with his own personal surveillance of official repression of dissent. For more than thirty years Donner has collected and catalogued data on government efforts at suppression. In the 1950s Donner acted as a trial consultant and appellate litigator in a series of Smith Act prosecutions and later served as counsel to several witnesses subpoenaed to testify before congressional countersubversive committees. In 1971 he accepted a post as director of the American Civil Liberties Unions Project on Political Surveillance. This book is the product of his work on that project. The Age of Surveillance is a carefully documented, thoughtfully executed history of the American intelligence establishment. Donner takes us on a dark journey through the labyrinthine structure of that establishment, a journey that traverses virtually every major pathway of American government. Turning initially to the FBI, Donner traces the process by which the bureau, through deceit, misrepresentation, and manipulation, managed to obtain and then to maintain for some forty years its largely spurious authority to conduct domestic intelligence investigations. In the course of his narrative Donner offers an in-depth, if not revelatory, profile of J. Edgar Hoover and of the manner in which he molded the bureau to suit his own ends. We have seen this stuff before, but Donner attacks his subject with particular relish, doggedly following the directors every step as he purposefully turned his back on conventional law enforcement and the investigation of organized crime in order to pursue a higher good-the suppression of subversion. Donner also gives us the bureau in action, depicting in detail the FBIs investigative techniques and strategies, its methods of data collection and retention, and its various counterintelligence programs. Donners journey takes us beyond the bureau. He documents Operation