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 of speech 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 of free 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.