One can only hope. Accordingly, along with Professor Stone, one might argue that the rule of Schenck is entirely discredited doctrine that should no longer govern "issues at the very heart of the First Amendment." ⁸² But if the Court were pressed in a heads-on challenge to wartime restrictions of speech liberties, is it inconceivable that the Justices would return to that doctrine to reject the challenge?

In today's post-9/11 world, Professor Stone's liberal optimism would surely clash with the conservative skepticism of government lawyers arguing for the constitutionality of speech-restrictive statutes. Thus, his idealism would be pitted against the realism of the Bush Justice Department's cramped views on constitutional liberties. Certainly, it is reasonably within the realm of possibility that the U.S. Attorney General or the Solicitor General would urge the Court to retreat to the old and toothless "clear and present danger" test or Dennis's variation of it.

Indeed, former Attorney General John Ashcroft denounced any judicial interference with Executive wartime authority in order to protect individual liberties, albeit not speech freedoms. Lambasting the Court's rulings in three enemy combatant cases,⁸³ Ashcroft attacked the "profoundly disturbing trend" in such intervention.⁸⁴ "The danger I see here," he asserted, "is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war." ⁸⁵ Would not such a perspective on the fragility of Fifth Amendment due process rights in wartime ⁸⁶ carry over to First Amendment expressive rights as well, particularly if they allegedly "affect" the prosecution of the war? And would not such a perspective be even more focused so as to reject First Amendment claims whenever terrorist hate speech is involved?⁸⁷