好书推荐Perilous Times: Free Speech in War Time

Dracula

最近刚读完这本书，作者Geoffrey R. Stone是芝加哥大学法学院的教授。这本书是探讨美国人尤其是最高法院对第一宪法修正案言论自由看法的演化。在和平时期，我们绝大多数人都同意言论自由应该得到保护，但是在战争时期，国家民族处在危机关头，国民的情绪会特别的亢奋，很容易视对战争目的，战争手段(比如征兵制)，包括政府的攻击为对国家民族的不忠实，尤其是国内的意见不统一可能会被敌方利用，因此很容易滑向对言论自由的压制。但是对civil libertarian来说，正因为处在紧要关头，反对意见才是最高形式的爱国。对战争目的，战争手段的争论关系到国家民族的大计，在民主制度下，必须进行广泛自由的辩论。这本书集中描述美国历史上的6个时期: 1798年Sedition Act，内战时对言论自由的政策以及林肯对言论自由的看法，一战及稍后Espionage Act 和Sedition Act, 二战时言论自由的政策以及对日裔美国人的监禁，冷战初期的麦卡锡主义，越南战争时最高法院对言论自由的一系列意见，尤其是关于Pentagon Paper。作者是法学院的教授，因此书的重点是一战到越南战争最高法院对第一宪法修正案解读的演化，尤其是clear and present danger标准的形成。一战时，在街上发传单，宣传和平主义，反对征兵制(即使是主张合法手段改变)，就可能被判刑。到30年代，最高法院的看法变为只要言论没有公开鼓动违反法律就受第一宪法修正案保护。到1957年，Yates v. United States 最高法院更进一步，判决象美国共产党那种鼓吹暴力革命，暴力推翻美国政府的言论只要是在抽象层面，不具体发动行动的，同样受第一修正案保护。到1969年Brandenburg v. Ohio最高法院进一步明确，建立起imminent lawless action的标准，只有言论直接鼓吹违反法律，而且是immediate law violation， law violation很可能因此而发生的情况下政府才可以禁止，三个条件缺一不可。这个标准一直维持到现在。更重要的是，普通美国人在最高法院的影响下，接受言论自由是美国价值观最基本最重要的一部分，一战时对言论自由的压制，二战时对日裔美国人的监禁，麦卡锡主义时期一些过分行动现在已经被广泛接受是美国历史上的耻辱和严重教训。从越南战争到最近的几场战争，压制言论自由的法案不仅没有出现，而且连动议也几乎没有。当然，未来总是难以预知，如果美国进入关系生死存亡的战争，美国人对言论自由的态度可能又会发生变化。不过这本书的作者对未来持谨慎的乐观态度。


最后抄两段这本书里给我印象最深的部分。

首先是美国历史上最伟大的最高法院法官Oliver Wendell Holmes的一段话，这也是美国法律史最有名的一段判决意见

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or you power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition…. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

第二段是作者在1798年Sedition Act一章结尾的评论

In perhaps its single most important sentence on the freedom of speech, the Supreme Court declared in 1974 that “under the First Amendment there is no such thing as a false idea.” What does this mean? It does not mean that some ideas are not better than others, or that we must always act as if all ideas are of equal worth. Rather, it means that conclusive judgments about which ideas are good and which are bad, which are true and which are false, are not to be made by the government, by a judge, by a jury, or even by a majority vote of the people. As the court explained, “however pernicious an opinion may seem, we depend for its correction not on the conscience”of legislators or judges or votes “but on the competition of ideas”

Thus, we can act on the “good”idea that we should go to war with France, but we cannot act on the “good”idea that no one may question that decision, or challenge its premises, or criticize its supporters. The First Amendment, in other words, places out of bounds any attempt to freeze public opinion.

But why should this be so? If we are convinced that a war justified, why shouldn't we ban speech that attacks the war as unwise or immoral? Why can’t we act on our judgment that such claims are false? A simple answer would be that we don’t need to ban “bad”ideas, because we are confident the people will not embrace them if they are allowed to consider them in free and open debate. But we shouldn't believe that. We know that knowledge, people, and debate are imperfect, and that at least sometimes people will accept and act upon “bad”ideas if they are free to do so. So, that is not the explanation.

It is, rather, that we are balancing two competing risks. On the hand, there is the risk that, if permitted to consider all ideas, the people will sometimes embrace bad ones. On the other hand, there is the risk that, if given the power to suppress ideas they believe to be “false”, the people will sometimes suppress ideas that would better be left open to continued debate and deliberation.

In choosing the risks, and deciding whether the people, acting through their government, should be able to declare certain ideas “false”, we must consider the nature of human nature. As history teaches, people are prone to intolerance. We have a need to believe that we are right, to believe “that we know that we know”, to silence those who disagree, and in the words of Justice Holmes, to “sweep away all opposition”

If the people can act on this instinct, there is every danger they will do so. It is not inherent in human nature to be skeptical, self-doubting, and tolerant of opposing ideas that, again in the words of Justice Holmes, “we loathe and believe to be fraught with death”. The First Amendment, on this view, cuts against human nature. It demands that we be better than we would be.

The Supreme Court has it right. The danger of suppression is greater than the danger of debate. For our nation to declare that “under the First Amendment there is no such thing as a false idea”is in effect, to embrace ambivalence, to foster an ongoing reexamination of our beliefs, and to insist upon tolerance of those opinions we might too readily dismiss. It is, in short, to insist upon the right to doubt. That is the most fundamental lesson of the Sedition Act of 1798.