I. INTRODUCTION

We start with Holmes and what he declared in the first landmark case about free speech in wartime - Schenck v. United States.⁵ "When a nation is at war," he stressed, "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."⁶ If such a statement is meant as a proposition of constitutional law rather than as mere rhetoric, what does it suggest? At least, it posits that a determination of "war" will very much affect the level of constitutional protection for expression. Indeed, that determination was the predicate in Schenck itself for the application of the infamous "clear and present danger" test.⁷

For First Amendment purposes, four questions follow naturally from Holmes's maxim:

1. What is "war"?
2. Which branch or branches of the federal government have the power to determine the existence of "war"?
3. Should there be different standards of judicial review for constitutional protection of expression during "wartime"?
4. In contemporary times, what rules and standards for judicial review are to be applied for constitutional protection of expression during "wartime"?

By raising such questions, we hope to shed some new light on old law, to challenge the conventional wisdom about the "clear and present danger" test and its progeny, and to begin to reconfigure First Amendment analysis in "wartime." ⁸