These points do not escape Professor Stone. He is understandably vigilant in qualifying his commentary about the significance of Brandenburg for future wartime cases when he claims that "the [Supreme] Court effectively overruled in one fell swoop" the Schenck to Dennis line of authority.⁷⁶ Similarly, he asserts that the Court's current "approach would seem to permit the punishment of subversive advocacy" during wartime only if the Brandenburg criteria were satisfied.⁷⁷ And he acknowledges the view that, because war involves extraordinary dangers to the nation, ordinary constitutional standards for protection of free expression should be suspended: "Under this view, whereas the Court's 1969 decision in Brandenburg states the proper First Amendment test for reviewing restrictions of dissent in normal times, courts should defer to the executive in wartime and resort in such circumstances to something more like the World War I era 'bad tendency' test."⁷⁸ In all of this, Stone is being a careful scholar.

Despite these admissions, Stone is equally careful not to emphasize them. He certainly does not highlight the importance of the contextual differences between Brandenburg and the early wartime cases. Nor does he concede that Schenck and its progeny have any real precedential value as a matter of law. Nor will he likely countenance the possibility of different standards of judicial review for constitutional protection of expression during wartime and peacetime. More optimistically, he describes Brandenburg as "redefin[ing] fifty years of jurisprudence in order to articulate a clear and unambiguous standard to deal in the future with issues like those raised by the Sedition Act of 1798, the Espionage Act of 1917, and the Smith Act of 1940."⁷⁹ And he invokes Brandenburg as an example to be followed by the Court in "consciously construct[ing] constitutional doctrines that will provide firm and unequivocal guidance for later periods of stress."⁸⁰

We share Professor Stone's optimism. And we think that he tenders sound arguments for the claim that Brandenburg eclipses its wartime predecessors. In this respect, we - like Stone - agree with the late Harry Kalven, Jr., that Brandenburg should be "the perfect ending to a long story." ⁸¹