Vol. 9 No. 11 (November 1999) pp. 520-521.

FREE SPEECH IN THE GOOD WAR by Richard Steele. New York: St. Martin's Press, 1999. 309 pp. Cloth $45.00.

Reviewed by Jerome O'Callaghan, Department of Political Science, State University of New York at Cortland.

Richard Steele's FREE SPEECH IN THE GOOD WAR chronicles the fate of a newly emerging liberal understanding of free speech during the prosecution of
World War II. His focus is the office of the Attorney General of the United States, an office that had the responsibility of selecting for prosecution any number of a wide variety of war critics, radicals, fascists, and communists. Steele reminds us that despite the warm gloss now placed on the "good war" by contemporary media, there were many on the left and right who objected to it. This was the era when "saboteur," "subversive" and "fifth column" became parts of everyday speech.

The three men who led the Department of Justice in this period were Frank Murphy, Robert Jackson, and Francis Biddle. Two of the three were invited "upstairs" to the Supreme Court after brief stints at Justice. Interestingly both Murphy and Jackson made important free speech decisions on the Supreme Court: Murphy authored the provocative "fighting words" decision CHAPLINSKY v NEW HAMPSHIRE (1942), while Jackson wrote the inspirational paean to free speech in WEST VIRGINIA v BARNETTE (1943). Steele is not interested in their careers on the Court, so no link is drawn between the very different opportunities each enjoyed to shape free speech law.

It is clear in this story that the office of Attorney General is pummeled by forces too numerous and persistent to withstand: President Roosevelt, Congress, media, pundits, and the voters. This is a story of political prosecutions; however it reminds us that not all such prosecutions bear the odor of the torture cells of a third world dictatorship. Indeed, in a broad sense all prosecutions are political. The difficulty in wartime is the temptation to use the power of indictment in the worst possible way.

Throughout this tale two figures loom in the background: Oliver Wendell Holmes and Franklin Delano Roosevelt. Holmes had set the intellectual agenda with the "clear and present danger" test and his subsequent dissents in important free speech cases. For Steele a central theme is how well Murphy, Jackson and Biddle lived up to the ideal liberal vision of free speech that Holmes had inspired. Steele is ultimately disappointed in his Attorney Generals, but accepts that they fought a good
fight. FDR is the character who, though not often on stage in this account, is the pivotal manipulator in the entire story: selecting and removing the candidates, pushing some up to the Supreme Court, pressuring the incumbent for more prosecutions, reacting testily to critics of the administration, angry at a doubting press. One is constantly reminded of the enormous shadow cast by FDR on the political landscape of this century. Interestingly his

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intermittent demands for more prosecutions worked at cross-purposes with his appointments to the Attorney General's office (sometimes), and with his
appointments to the Supreme Court (often).

There is little that is surprising here; politics provides constant pressure on the office of the Attorney General, as fans and foes of Janet Reno will attest. Steele's chronicle lacks the drama of personal accounts of wartime prosecution such as. Polenberg (1987) and Irons (1988). It is an efficient and succinct history that verges on the "just the facts" journalistic approach of reputable newspapers. It would not be popular reading with undergraduates. However for scholars of the period, and of the Department of Justice, it will be a valuable reference.

Steele's reluctance to look beyond the particulars of each man's tenure left this reviewer hungry for more analysis. I wondered again about the famous dictum of Chief Justice Hughes, in HOME BUILDING v BLAISDELL (1934), that "emergency does not create power." Though Steele is circumspect in his comments, my impression is that government power over speech was enlarged by the activities of the Department of Justice. The higher courts were not consistently supportive of the department, particularly after 1943, but the indictments, trials and convictions were effective tools of intimidation. In addition there is the Supreme Court's tendency to allow a lot of freedom to an administration at war abroad. Further, Steele does not examine the influence of the Solicitor General on the Supreme Court. Today that influence is believed so immense as to justify the title "Tenth Justice." By neglecting that office Steele suggests that real influence was not there,
but the issue lingers.

It is unfortunate that so little is put into the analysis, as opposed to the description, of this war story. The last three pages are a quick evaluation, but even then Steele tends to summarize. I would have preferred a discussion of the role of politics in the development and implementation of "neutral" law. In theory free speech in 1942 was the same as it was in 1932, but in practice that was not so. In theory critics or subversives on the right were as "indictable" as their counterparts on the left, but in practice the left had fewer friends in power, and that mattered. This book speaks well to the tension inherent in a democracy that aspires to "equal justice under
law." Justice was far from equal for strident critics of the war, and that was how the democrats wanted it.

REFERENCES

Irons, Peter. 1988. THE COURAGE OF THEIR CONVICTIONS. New York: The Free
Press.

Polenberg, Richard. 1987. FIGHTING FAITHS. New York: Viking Penguin

CASE REFERENCES:

CHAPLINSKY v NEW HAMPSHIRE 315 U.S. 568 (1942).

HOME BUILDING v BLAISDELL 290 U.S. 398 (1934).

WEST VIRGINIA v BARNETTE 319 U.S. 624 (1943).