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7 Wm. & Mary Bill Rts. J. 105 (1998-1999)
Lincoln, Vallandigham, and Anti-War Speech in the Civil War

handle is hein.journals/wmbrts7 and id is 113 raw text is: LINCOLN, VALLANDIGHAM, AND ANTI-WAR SPEECH IN THE CIVIL WAR Michael Kent Curtis' In the early morning hours of May 5, 1863, Union soldiers forcibly arrested Clement L. Vallandigham, a prominent Democratic politician and former congressman, for an anti-war speech which he had given a few days earlier in Mount Vernon, Ohio. Vallandigham's arrest ignited debate about freedom ofspeech in a democracy during a time of war and the First Amendment rights of critics of an administration. This Article is one in a series by Professor Curtis which examines episodes in the history offree speech before and during the Civil War. In this Article, Professor Curtis explores the First Amendment's guarantee of free speech and the contention that other constitutional values must supersede this guarantee during a time of war. He discusses and evaluates theories that Vallandigham's contemporaries advocated in support of protection for anti-war speech, as well as theories supporting the suppression of anti-war speech. Curtis concludes that even in a time of war, free speech is essential to the preservation of a representative government and individuals' Constitutional right to discuss issues crucial to their lives. TABLE OF CONTENTS I. INTRODUCTION ............................................. 107 A. The Meaning of Vallandigham's Arrest ...................... 107 B. The Democratic Party and Vallandigham's Politics ............ 111 C. Arbitrary Arrests . .................................... 115 II. THE VALLANDIGHAM ARREST, MILITARY TRIAL, AND APPLICATION FOR HABEAS CORPUS ........................................... 117 A. The Immediate Context of Vallandigham's Arrest .............. 117 B. The Arrests and Trials of Clement L. Vallandigham ............ 121 C. Events After Vallandigham 's Banishment .................... 131 III. REACTION TO THE VALLANDIGHAM ARREST AND THE CHICAGO TIMES CASE: THE FREE SPEECH TRADITION CONFRONTS THE WAR POWER .......... 136 Professor of Law, Wake Forest University School of Law. I wish to thank Ronald Wright, Michael Perry, David Logan, Alan Palmiter, Jonathan Harkavy, Miles Foy, Stephen Heyman, Robert J. Reinstein, John C. Jeffries, Jr., Richard L. Aynes, William Mayton, Jeffrey Rogers Hummel, Sanford Levinson, Jeffrey Rosen, Daniel A. Farber, and Eugene Volokh for comments on an earlier draft of this article. I also want to thank my research assistants Kelly Patterson, Ryan Shuriman, 'Abby Wood, and Andrew Halsbe for their very important assistance.

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