Book Review

Jeffrey A. Smith, War and Press Freedom: The Problem of Prerogative Power, New York: Oxford University Press, 1999. Pp. 312. $45.00, cloth (ISBN 19-509945-1); 21.95, paper (ISBN 0-19-509946-X).

These two studies of American legal history are comfortably matched. Jeffrey Smith's carries the reader back to the 1780s and the republic's origins, whereas Arthur Sabin's focus is on the twentieth century. But both combine moral distinction, wide horizons, an intuitive sense of individual freedom, and detestation of arbitrary rule. Each in its own way succeeds masterfully in warning against the ultra vires of governmental power, whatever branch exercises it; each is an exemplary work of historical and legal reconstruction that dramatically reinforces our understanding of the period with which it grapples. "Reinforce" is a precise term, in that neither study breaks new ground. They are primarily works of synthesis, indefatigibly researched accounts of dark and unwholesome epochs in the nation's past.	1
In Calmer Times fixes on the mid-twentieth century political and legal developments, though recalling their antecedents during the First World War. One wishes that it had lingered on these wartime years and rendered an account of the legal and extra-legal activities of local governments and ordinary folk; that is, the systemic anti-Wobbly (Industrial Workers of the World), anti-pacifist, anti-German, anti-Boshevik sentiment; or, going back further, describe the pervasive hostility to foreign radicals of every variety in the three decades after Haymarket. Then, too, it would have been instructive to survey the interwar developments—the specter of Bolshevism that haunted the popular and official opinion over two decades, which prompts wonder whether, as Sabin writes, "the nation's first Red Scare was significantly diminished as a major public concern" after 1920 (21). Socialists, communists, anarchists, dissident teachers, trade unionists, et al would vehemently disagree. The assertion that J. Edgar Hoover and his General Intelligence Division lacked "any statutory basis for prosecuting radicals and dissidents" (20) with the Armistice and the expiration of the Sedition Act is likewise debatable. After all, the Espionage Act and the 1861 Conspiracies Act remained good law. Moreover, while High Court perceptions altered after 1958, as Sabin persuasively argues, doubt exists about changes in popular perceptions. Indeed, one wishes that he explored at greater length the national implications of Truman's 1947 Loyalty-Security executive order, because from then on, state and local governments as well as private employers passed test oaths modeled on the federal measure, and eventually 13,500,000 employees, one fifth of the work force had to take a loyalty test. From factory workers to members of professional bodies to residents in federal housing projects, none were exempted. The inquisitorial spirit, once implanted, could hardly be expected to expire after 1958. The ongoing Cold War and the patriotic manifestations that ranged from Loyalty Day parades to bully pulpit rhetoric of successive presidents guaranteed as much. So did the activities of anti-communist zealots like, among a host of others—Pat McCarran, Nevada's silver-haired Senator, who had the cold, calculating persistence of the true believer, was far more systematic, durable and influential than McCarthy. To find that the president "bravely vetoed" McCarran's 1950 Internal Security Act insouciantly disregards the Administration's role in establishing a climate of opinion that made the override predictable.	2
Though the above are hardly cavils, they are more than compensated for by Sabin's beautifully accomplished recreation of case law. For example, his pages include an unrivaled exploration of the International Workers Order, charged with being a subversive organization, and its trial in the New York State courts; and his meticulous exegetical commentary on the trial of the top Communist Party leadership as it moved through the federal court system (Dennis v. U.S. [342 U.S. 494]). He casts new light on Harold Medina, the district court judge—his persistent bias against the defendants, extreme sensitivity to personal criticism, and ideological love affair with J. Edgar Hoover. Sabin hardly stops with these two trials. He surveys the post-Dennis political climate—the panic gripping the Communist Party, the relentless FBI surveillance, Hoover's obsessive pursuit—as well as the many Vinson and Warren Court decisions.	3
Of course, at the close of the 1956–57 term, described in fresh and illuminating detail, there were the Red Monday opinions: the state bar cases (Schware v. Board of Examiners of New Mexico, Konigsberg v. State Bar of California, Jencks v. U.S), rejecting the confidentiality of FBI reports; Service v. Dulles, et al, that denied the "absolute discretion" of the Secretary of State to fire a foreign service office; Watkins v. U.S., repudiating exposure for exposure's sake (a customary practice of congressional investigatory committees); and Yates v. U.S., in which Harlan for the majority sharply reduced the administration's chances for further Smith Act convictions of Community Party leaders. These decisions sent shock waves across the nation. They are punctuated by sharply etched vignettes of the justices themselves.	4
War and Press Freedom, as the title suggests, focuses on press restriction and wartime censorship, and makes a consistent defense of the First Amendment. It forcefully reminds us of the deplorably long and consistent history of presidential aggrandizement, judicial connivance, and congressional fecklessness. Taking the reader back to Anglo-American legal traditions, Smith surveys the pre-Revolutionary era. Valorizing Madison and reaffirming Hamilton's Federalist number 78, on the need for an independent judiciary, Smith forcefully endorses the framers' rejection of an all-powerful executive, chronicling the great concern for a free press on the part of Federalists and anti-Federalists alike in the 1780s and 1790s. Indeed, Smith contends that the issue of a free press guarantee was central to the framers' thinking and the limits imposed on congressional powers, that it framed the states' ratification debates and motored the First Amendment. But Federalists did violence to this guarantee by their Alien and Sedition Acts which, Smith observes, prefigured the rise of the national security state. The Adams administration and the federal bench prosecution of Republican editors was hardly a testament to freedom of the press. Yet Jefferson cannot be happily contrasted to his predecessor, being "among early presidents who ... stretched their authority in domestic and foreign relations" (89). Smith fails to render the complete story, being satisfied to observe how vital interests of national preservation prompted the third president to violent constitutional prohibitions in the purchase of Louisiana. Neglected are the "few wholesome prosecutions" urged by Jefferson upon state governors and federal prosecutors, his insistence upon exclusive state power over the press, the prosecution of arch-Federalist editors like Joseph Dennie and Harry Croswell for seditious libeling of the president, and his late expansive executive efforts, such as condoning the military despotism, using the army to enforce laws in time of peace that, together with the drastic fourth Embargo Act, carried the nation to near-presidential dictatorship.	5
Given his liberalism, Smith goes beyond Holmes's test for genuine freedom—freedom for the thought we hate—to disavow "balancing" tests (Jefferson's "unwritten law of necessity" versus inviolable individual liberties) and demonstrate how government decisions consistently undermined constitutional rights. Military necessity became the reason for press censorship, as with President Polk at the time of the Mexican War. Lincoln, of course, is a natural target for Smith, given Civil War press restrictions, telegraph censorship, arbitrary arrests, etc. However, one may contend, there was great justification for presidential actions at the time. Lincoln, after all, used the war powers with circumspection and leniency, considering the extremely dangerous conditions in the border states, the mild treatment of political prisoners, his response to Union papers that virulently denounced the war or continuously publicized planned military tactics, and lax press control, despite the fact that reporters were everywhere. Although Lincoln's actions admittedly eroded constitutional foundations, the emergency was grave: southern cavalry raids penetrated northern lines, while pro-southern sympathizers joined militant secret societies, destroyed bridges, ambushed Union forces, made drawings of federal forts, and intimidated northern voters.	6
Surely less justification can be found for Theodore Roosevelt's notion of presidential power, his readiness to act without specific authorization, his approval of "any legislation, no matter now extreme, that will reach the men who vilify and defame America" (125). Predictably, Wilson fares little better, given the wartime censorship, the press curbs of the Espionage Act, and the Trading with the Enemy Act. Like the courts and the lawmakers, indeed like virtually all Americans, his administration over-reacted to fears and "balanced" away rights. Smith is even less forgiving toward Harry Truman, citing his press censorship directives during the Korean War, the muzzling of MacArthur and others, the Justice Department's prosecution of Communist Party leaders, and its assertion that the president is the "sole organ" of foreign relations, relying on U.S. v. Curtiss-Wright which, Smith finds, was a "misconstrued judicial dictum." Understandably, he endorsed the Court's opinion in the steel seizure case, since it rejected Truman's position on emergency presidential power and found that presidents could only execute laws made by Congress and that truman had violated this sacrosanct doctrine (Youngstown Co. v. Sawyer).	7
Truman, then, fit the pattern of his successors—that is, presidents "who said they were preserving freedom but who accomplished more the actual subversion of democracy than any internal dissenters or foreign adversaries" (169). Johnson, Nixon, Reagan, and Bush joined Truman in the belief that sharing power with Congress in foreign and domestic policy was a derogation of the Presidency. Small wonder, then, that Smith arraigns Johnson's "presidential arrogance" in Vietnam and the inflated presidential powers delegated by Congress's Tonkin Bay resolution or that his assessment of President Nixon, centering on the Pentagon Papers brouhaha and subsequent judicial decisions, reaffirms the "absolutist positions" on freedom of the press in Black's and Douglas's concurrences. Reagan's exclusion of the press during the Grenada invasion receives the same cold reception that the reporter-pool practices of President Bush did in both the Panama assault and the Iraq war. Neither Congress nor the judiciary escape authorial shafts, because lawmakers almost never challenged the presidential authority and the Marble Palace supported it. In sum, each author in his own way rejects Smith's "senseless notions of security" and any effort to curtail constitutional rights. Their studies are indispensable, clear-eyed companions for the traveler setting forth across our crepuscular legal landscape.	8
Milton Cantor University of Massachusetts, Amherst

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