Were the Abrams defendants brought before a federal district court sitting today in Manhattan for criminal indictments issued under the above statute, their lawyers undoubtedly would raise a phalanx of facial and as-applied constitutional challenges. For example, the attorneys would attack each of the italicized terms for vagueness, substantial overbreadth, content discrimination, and other related claims. "Scurrilous," after all, refers to any defamatory or disrespectful utterances - much of which would surely be protected under New York Times Co. v. Sullivan.¹⁰⁴ Similarly, "abusive" language includes insulting or offensive expression - much of which would surely be protected under Cohen v. California.¹⁰⁵ And any charge of bringing the American form of government or its flag into "contempt" would surely fail under Smith v. Goguen.¹⁰⁶ Finally, insofar as the statute targets otherwise protected expression that is defined by its content, it is a content-discriminatory regulation that would very likely fail under strict scrutiny analysis. ¹⁰⁷

Contrast such routine and relatively uncontroversial stratagems with the hornet's nest of arguments compelled by the Schenck/Brandenburg analysis. Who, in her right First Amendment mind, would opt for the Schenck/Brandenburg complexities over the tool-kit's certainties? Furthermore, tool-kit analysis need not engage the thorny morass of defining "wartime" in order to be effective. For example, a law that is vague should be voided in either peacetime or wartime simply because it fails to notify the average person of what is prohibited. By much the same logic, a law that is substantially overbroad should be invalidated in either peacetime or wartime whenever it reaches clearly protected expression. And a content-discriminatory law - for example, an anti-demonstration law targeting war protestors - should be invalidated regardless of the characterization of existing armed hostilities.

Modern free-speech methodology offers yet another significant advantage - this one to lawmakers as well as judges. It allows judges to strike particularly odious speech regulations while leaving the government a measure of legitimate latitude to craft a new law in constitutional ways. In effect, the methodology counsels lawmakers: "It's not that you can never restrict expression in wartime, but the manner by which you've chosen to do so is unacceptable. You must regulate speech more evenhandedly (i.e., without content discrimination), more precisely (i.e., without vagueness), or more narrowly (i.e., without substantial overbreadth). Or you must regulate conduct for non-speech purposes, and apply that law narrowly so as to minimize its impact on expressive conduct. ¹⁰⁸ If you do that, your law is far more likely to survive."

In his book, In the Name of War, Professor Christopher N. May took an understandably pessimistic view as to the likelihood of prevailing on wartime challenges to legislative and executive action. ¹⁰⁹ "Under exigent circumstances," he argued, "courts should steer a middle course and defer review until the emergency has abated." ¹¹⁰ Recommending judicial "mechanisms for deferral" ¹¹¹ (use of jurisdiction and justiciability doctrines such as standing, sovereign immunity, ripeness, and political question), May hoped to avoid the liberty-restrictive rulings likely to occur in times of war. ¹¹² His fears, we suspect, would be compounded either by the revival of Schenck or by the diminishment of Brandenburg - both realistic scenarios in times of national crisis. Those same fears, we hope, might be allayed by a principled application of modern free-speech doctrine.