One thing that most Americans can agree on is that free speech is vital to a thriving
democracy. Despite this fact, the U.S. also has a habit of restricting free speech during certain
trying times in the nation’s history; this is especially true during wartime. The United States has
only ever officially declared war against foreign nations five times since the country’s founding
over two centuries ago. World War II was the most recent war that the U.S. officially entered.
Most Americans know that the U.S. has involved itself in many more military engagements since
the 1940s, a few of which have limited Americans’ First Amendment rights even though the
United States was not officially at war.
The first instance of the federal government limiting the right to Free Speech is evident in
the 1798 Alien and Sedition Acts. These Acts outlawed false, scandalous, and malicious
statements against the government, as well as speech deemed as fueling contempt or hatred
towards the government. Both freedom of the press and citizens’ rights to criticize the
government were heavily violated during this time. Levels of fear were very high at the time
because many thought that the U.S. was going to war with France, so the justice system was
also affected, further enabling a violation of rights.
The next instance of violation of Free Speech was during the Civil War. In 1861,
President Lincoln briefly suspended the right to habeas corpus in Maryland due to the Baltimore
riots and threats to key Northern railroads. The Supreme Court ruled that he could not do this in
Ex Parte Merryman, but Lincoln ignored the Court’s orders.
The world wars were also a very trying time in the nation’s history. During World War I,
the Espionage Act was enacted in 1917, and the Sedition Act followed closely in 1918. The
Espionage Act made untrue statements that could potentially hurt military success illegal, while
the Sedition Act enacted a fairly broad criminalization of speech that involved disloyal language.
During this time, the Courts upheld the Acts. However, after World War I, Congress repealed
them, and many of those who were convicted had their sentences repealed or reduced. During
World War II, the Smith Act was primarily used to silence or imprison those who identified as
socialist or communist, with enforcement continuing after the end of WWII. In 1942, Executive
Order 9066 forcibly moved Japanese Americans from their homes, placing them into internment
camps. The Supreme Court upheld the order in Korematsu v. the United States.
Many are familiar with the McCarthy era, which lasted from the late 1940s through the
1950s, in which Communists were hunted or blacklisted. Truman’s Executive Order 9835
went into effect in 1947 and stated that reasonable belief that someone was disloyal justified
termination or denial of federal employment. Around 4.7 million Americans were investigated
during this period, and hundreds of federal employees were let go. The House of Un-American
Activities Committee famously led the charge against anyone who was suspected to be a
communist. Later, during the Vietnam War, the government worked to stop anti-war movements
that were extremely popular among the youth at the time. The Supreme Court, however, was
relatively progressive during this period and, generally speaking, protected the right to free
speech in several cases, such as Tinker v. Des Moines Independent Community School District
(1969), which protected students’ right to wear black armbands in protest of the war.
Several of the previously mentioned examples did not occur during an official war in
which the United States was engaged. While the apparent reasoning behind restricting free
speech is to protect national security, where do we draw the line? When the U.S. actively
engages in military operations or funding other countries’ militaries in various wars, what is considered wartime?Have we truly had peacetime since the beginning of the Cold War? We as a society need to consider these questions in a modern era that seems to remain somewhere between war and peace.