GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 8 (2004).
ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES (1941) (expanded and updated from ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH (1920)).
THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970) (largely derived and expanded from THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT (1966)).
LEONARD W. LEVY, EMERGENCE OF A FREE PRESS (1985) (revised, updated, and corrected from LEONARD W. LEVY, LEGACY OF SUPPRESSION (1960)).
Id. at 52. Similar statements can be found in New York Times Co. v. United States, 403 U.S. 713, 726 (1971) (Brennan, J., concurring); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (Douglas, J., concurring); Gilbert v. Minnesota, 254 U.S. 325, 338-39 (1920) (Brandeis, J., dissenting); and Abrams v. United States, 250 U.S. 616, 627-28 (1919) (Holmes, J., dissenting), among other places..
An important caveat: To avoid confusion, we think it wise to sharpen the focus of our inquiry at the outset. We are more concerned with the influence of the Presidency on domestic "wartime" policies implicating free-speech rights than with the powers of the Commander in Chief to wage military hostilities at home and abroad. While the two are related, we recognize that the legal analysis of one is likely to differ from that of the other.
Interview by Ronald K.L. Collins with Geoffrey Stone in Different Wars, Similar Fears: An Interview about Government Restrictions on Free Speech in Wartime, FIRST REPORTS 14 (First Amendment Center, Arlington, Va.), Nov. 2004 [hereinafter Different Wars, Similar Fears] (addressing the issue of First Amendment protections during undefined and unending "wars").
See LIVA BAKER, THE JUSTICE FROM BEACON HILL: THE LIFE AND TIMES OF OLIVER WENDELL HOLMES 107 (1991).
See ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE LIFE, WORK, AND LEGACY OF JUSTICE HOLMES 79-81 (2000).
For thoughtful analyses of the dichotomies between offensive and defensive war powers as based in constitutional text and original understandings, see NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION 103-07 (2004); LOUIS FISHER, PRESIDENTIAL WAR POWER 1-12 (2d ed. 2004) [hereinafter FISHER, PRESIDENTIAL WAR POWER]; EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER 3-5, 33-40 (1982); CHRISTOPHER N. MAY, IN THE NAME OF WAR: JUDICIAL REVIEW AND THE WAR POWERS SINCE 1918, at 16-17 (1989). For a more skeptical analysis challenging the clarity of the Constitution's text and original understanding on the necessity for and formalities of congressional authorization for armed hostilities, see generally William Michael Treanor, The War Powers outside the Courts, in THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY 143-60 (Mark Tushnet ed., 2005) [hereinafter THE CONSTITUTION IN WARTIME].
Because Article I vests Congress with regulatory power over the military, the President's powers as Commander in Chief were not historically understood to grant him unlimited discretionary authority to conduct military operations. See, e.g., THE FEDERALIST No. 69, at 418 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the Commander in Chief power as "nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy"); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1192, at 418 (Ronald Rotunda & John Nowak, eds., Carolina Academic Press, 1987) (1833) (Without Congress's regulation of the military, "the most summary and severe punishments might be inflicted at the mere will of the executive."). For an argument that this historical understanding of the separation of the war powers limits the authority of the President and military officials to establish military commissions without congressional legislation, particularly in the context of the current "war against terrorism," see generally Brief Amicus Curiae of Louis Fisher in Support of Petitioner-Appellee Urging Affirmance, Hamdan v. Rumsfield, No. 04-5393, 2005 U.S. App. LEXIS 2474 (D.C. Cir. 2005) (urging affirmance of district court's order in Hamdan v. Rumsfield, 344 F. Supp. 2d 152 (D.D.C. 2004)), available at http://nimj.org/documents/Brief_Amicus_Curiae_of_Louis_Fisher.pdf (copy also on file with authors). Dr. Louis Fisher, the Senior Specialist in Separation of Powers with the Congressional Research Service of the Library of Congress, contends that the Bush administration's assertion of inherent constitutional power to create military commissions in the absence of congressional authorization ignores the history of the Founding era and subsequent use of military commissions to address crimes outside of the jurisdiction of any existing civil court. Id. at 4-9. See generally LOUIS FISHER, MILITARY TRIBUNALS AND PRESIDENTIAL POWER: AMERICAN REVOLUTION TO THE WAR ON TERRORISM (2005).
Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (emphasis added); accord Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (Chase, J., seriatim opinion).
MAY, supra note 18, at 16 (quoting John Quincy Adams, then a member of the House of Representatives).
Section 3 of the Espionage Act of 1917 begins: "Whoever, when the United States is at war . . . ." Espionage Act of 1917, ch. 30, § 3, 40 Stat. 217, 219, amended by Sedition Act of 1918, ch. 75, § 1, 40 Stat. 553, 553 (repealed 1921).
ELDER WITT, CONGRESSIONAL QUARTERLY'S GUIDE TO THE U.S. SUPREME COURT 186 (2d ed. 1990). Congress declared the War of 1812, the Mexican War (1846-1848), the Spanish-American War (1898), World War I (1917-1918), and World War II (1941-1945). Id. The six other episodes include the undeclared war with France (1798-1800), two Barbary wars (1801-1805, 1815), Mexican-American conflicts (1914-1917), the Korean War (1950-1953) (conducted under a Security Council resolution and, at serious political cost, labeled a "police action"), and the Vietnam War (1964-1973). For First Amendment purposes, Professor Stone treats only the undeclared wars with France, Korea, and Vietnam to be "episodes" of equal significance to the five congressionally declared wars.
For the military definition of war, see "War" in the Encyclopedia Britannica Online, at http://www.britannica.com/eb/article?tocId=9110187 (last visited Mar. 25, 2005). Military writers confine the term "war" to hostilities between contending groups of equal power where the outcome is uncertain for a time. See id.
FISHER, PRESIDENTIAL WAR POWER, supra note 18, at 177-80, 183-86.
Bruce Ackerman, This Is Not a War, 113 YALE L.J. 1871 (2004) [hereinafter Ackerman, This Is Not a War].
Todd Richissin, 'War on Terror' Difficult to Define, SEATTLE TIMES, Sept. 2, 2004, at A23 (quoting Tim Garden).
Glenn Kessler, 'Terrorism' Catchall Too Vague an Enemy, SEATTLE TIMES, July 23, 2004, at A15 (presenting an incisive op-ed on the September 11th Commission Report). The report emphasizes the distinction between terrorists and terrorism. NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 363 (2004), available at http://www.9-11commission.gov/report/911Report.pdf. "The goals [in the struggle against Islamist terrorism] seem unlimited: Defeat terrorism anywhere in the world. . . . Vague goals . . . lower[] expectations for government effectiveness." Id. at 364.
See JACQUES DERRIDA, Force of Law: The 'Mystical Foundation of Authority,' in DECONSTRUCTION & THE POSSIBILITY OF JUSTICE 3-4 (Drucilla Cornell et al. eds., 1992) (noting, among other things, how deconstruction posits the "absence of rules, of norms, of definitive criteria"); see also Michel Rosenfeld, Deconstruction & Legal Interpretation: Conflict, Indeterminacy & the Temptations of the New Legal Formalism, in DECONSTRUCTION & THE POSSIBILITY OF JUSTICE, supra, at 152-210 (noting, among other things, how the "old formalism" holds that the application of a "legal rule leads to determinate results" but nonetheless notes its demise owing to a "loss of faith concerning the availability of objective criteria").
New York Times Co. v. United States, 403 U.S. 713, 715 (1971) (Douglas, J., concurring).
O'Brien, 391 U.S. at 389-90 (Douglas, J., dissenting) (emphasis added).
The problem of the Presidency's "self-declared war" (with or without subsequent congressional ratification) is particularly acute when, as now, there is one-party control of both the legislative and executive branches.
In contrast, Justice Samuel Nelson's dissenting opinion declared: Before a civil war can exist "in contemplation of law, it must be recognized or declared by the sovereign power of the State, and which sovereign power by our Constitution is lodged in the Congress of the United States." Id. at 690 (Nelson, J., dissenting).
See WITT, supra note 24, at 187-88; see also THE OXFORD GUIDE TO UNITED STATES SUPREME COURT DECISIONS 246-47 (Kermit L. Hall, ed., 1999); DEVINS & FISHER, supra note 18, at 110-11; FISHER, PRESIDENTIAL WAR POWER, supra note 18, at 38-39; KEYNES, supra note 18, at 105-09.
See, e.g., Holtzman v. Schlesinger, 414 U.S. 1304 (1973); DaCosta v. Laird, 405 U.S. 979 (1972); Massachusetts v. Laird, 400 U.S. 886 (1970); Velvel v. Nixon, 396 U.S. 1042 (1970); Holmes v. United States, 391 U.S. 936 (1968); McArthur v. Clifford, 393 U.S. 1002 (1968); Mora v. McNamara, 387 F.2d 862 (D.C. Cir. 1967), cert. denied, 389 U.S. 934 (1967); Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972), aff'd sub nom. Atlee v. Richardson, 411 U.S. 911 (1973). Extended discussions of these and other relevant cases are provided in FISHER, PRESIDENTIAL WAR POWER, supra note 18, at 123-28; KEYNES, supra note 18, at 119-60; LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 234-35 (2d ed. 1988).
War Powers Resolution of 1973, Pub. L. No. 93-148, 87 Stat. 555 (1973) (adopted on November 7, 1973, over President Nixon's veto).
Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff'd, 203 F.3d 19 (D.C. Cir. 2000) (regarding air strikes in Yugoslavia; dismissed on standing grounds); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (regarding escort operations and military conflict in Persian Gulf; dismissed on standing grounds); Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984) (regarding invasion of Grenada; dismissed on political question grounds), vacated as moot, 765 F.2d 1124 (D.C. Cir. 1985); Sanchez-Espinoz v. Reagan, 568 F. Supp. 596 (D.D.C. 1983) (regarding American-sponsored terrorist raids in Nicaragua; dismissed on political question grounds); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff'd, 720 F.2d 1355 (D.C. Cir. 1983) (regarding supplying military equipment and assistance to the El Salvador government; dismissed on political question grounds).
Pressured in October 2002 to authorize hostilities before the November congressional elections, Congress passed the Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002). The Iraq Resolution did not formally declare war against Iraq, but left the decision to commence hostilities to the President's discretion. Id.
Doe v. Bush, 240 F. Supp. 2d 95 (D. Mass. 2002) (dismissed on political question grounds), aff'd, 323 F.3d 133 (1st Cir. 2003) (dismissed on ripeness grounds).
This phrase for devices of judicial self-restraint comes from the late Professor Alexander Bickel. See ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 111-98 (1962).
See Ronald Dworkin, What the Court Really Said, N.Y. REV. BOOKS, Apr. 12, 2004, at 26 ("[T]he justices' arguments provide the legal basis for a much more powerful conclusion than the Court itself drew . . . .").
Al Odah v. United States, 124 S. Ct. 2686 (2004); Rasul v. Bush, 124 S. Ct. 2686 (2004); Hamdi v. Rumsfield, 124 S. Ct. 2633 (2004). For incisive analyses of these decisions, see Laurence Tribe, Supreme Constraint, WALL ST. J., July 1, 2004, at A14; Lyle Denniston, No Presidential Monopoly on War Powers, at http://www.goldsteinhowe.com/blog/archive/2004_06_27_SCOTUSblog.cfm (last visited Apr. 3, 2005).
Although our Article focuses specifically on First Amendment speech liberties, much the same analysis would apply in full force to First Amendment press freedoms. A richly documented work by Professor Jeffery A. Smith, War and Press Freedom: The Problem of Prerogative Power
(1999), chronicles the legacy of suppression of the American press, enforced in the name of "self-preservation" and "national security," in the period from the adoption of the First Amendment through the 1991 Gulf War. The book reveals the erosion of full press liberties by the emergence of "a presidential-military protectorate shielded by secrecy and suppression."
Id. at viii. For an incisive analytical review of Smith's book, see Christopher N. May, The Fate and the Promise of a Free Press in War Time,
JURIST, Oct. 1999, at
http://jurist.law.pitt.edu/lawbooks/revoct99.htm.
Illustrative of threats to First
Amendment press freedoms incurred during the current "war on terrorism" is
the recent controversy over journalist Seymour Hersh's disclosures, in a
New Yorker magazine article, of the Bush administration's secret
reconnaissance missions inside Iran. See Seymour Hersh, The
Coming Wars: What the Pentagon Can Now Do in Secret, NEW YORKER, Jan.
17, 2005, available at
http://www.newyorker.com/fact/content/7050124fa_fact. The
political fury sparked by Hersh's "subversive journalism" led to at least
one call for prosecutorial investigation into possible violations of federal
espionage statutes. See Tony Blankley, Espionage by Any
Other Name: Creeping Normalcy of Subversive Journalism, WASH. TIMES,
Jan. 19, 2005, at 19 ("[F]ederal prosecutors should review the information
disclosed by Mr. Hersh to determine whether or not his conduct falls within
the proscribed conduct of [the Espionage Act, 18 U.S.C. §794(a), (b)
(200)]."). In this regard, if Hersh had taken his "subversive"
evidence to a Senator who immediately made a speech on the floor of Congress
disclosing the evidence and demanding that the Director of the CIA confirm
or deny and explain the disclosures, is there any question that the First
Amendment thereafter would guarantee the press the right to publish
everything that the Senator had said?
Hess v. Indiana, 414 U.S. 105 (1973) did apply the
Brandenburg "imminent lawless action" test in the context of an anti-war demonstration. Id. at 108. Like
Brandenburg, however, Hess is not a Schenck-type wartime case. Hess was charged with violating a state disorderly conduct statute; in contrast, all of the indictments in the
Schenck line of cases involved claims that dissident speech interfered with the conduct of the war. The distinction, in short, is between charges of public misconduct versus charges of interference with war. Moreover,
Schenck-type cases were grounded in the Espionage Act of 1917 and the Sedition Act of 1918, for which war is a predicate to violation, whereas the disorderly conduct statute at issue in
Hess was not premised on the existence of war.
On a related front, Professor Stone offers
Bond v. Floyd, 385 U.S. 116 (1966), as germane to the First Amendment wartime line of cases.
See STONE, supra note 1, at 521-23. The issue presented in Bond was "whether the Georgia House of Representatives may constitutionally exclude appellant Bond, a duly elected Representative, from membership because of his statements, and statements to which he subscribed, criticizing the policy of the Federal Government in Vietnam and the operation of the Selective Service laws."
Bond, 385 U.S. at 118. The Court held that Bond's statements did not amount to an incitement to violate the Selective Service statute's prohibitions on counseling against registration for military service.
Id. at 134. Furthermore, the Court determined that, although a state might impose an oath requirement on legislators, it could not impose greater limitations on their expression of local or national policy perspectives than might be constitutionally placed upon other private individuals.
Id. at 135. The Bond Court made no reference to the Schenck line of cases, and articulated no rule to replace the ones used in them.
See HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 231 (1988) (noting
Bond's commentary on "incitement" was presented "without formal discussion and citation" and without any discussion of the "location of the constitutional line"). For these reasons, among others, we find that
Bond has no significant bearing upon the legacy of Schenck and its successor rulings.
Id. (emphasis added); see also id. at 529 ("[T]he Court's own decisions upholding the World War I prosecutions of dissenters were all later effectively overruled . . . .") (emphasis added).
Al Odah v. United States, 124 S. Ct. 2686 (2004); Rasul v. Bush, 124 S. Ct. 2686 (2004); Hamdi v. Rumsfield, 124 S. Ct. 2633 (2004).
Curt Anderson, Ashcroft Says Judges Threaten National Security by Questioning Bush Decisions, (Nov. 12, 2004), available at http://newsmine.org/archive/cabal-elite/w-administration/judicial/ashcroft-says-judges-threaten-national-security-questioning-bush.txt.
Id. Former U.S. Solicitor General and D.C. Court of Appeals Judge Robert Bork similarly bemoaned "judicial micromanagement of America's war against radical Islamic terrorists," characterizing the Supreme Court's enemy combatant decisions and subsequent lower court rulings on abuses in military detention policies as "judicial overreaching that is constitutionally illegitimate and, in practical terms, potentially debilitating." Robert H. Bork & David B. Rivkin, Jr., A War the Courts Shouldn't Manage, WASH. POST, Jan. 21, 2005, at A17.
Veteran Supreme Court reporter Lyle Denniston has expressed amazement at the Justice Department's positive spin on the Supreme Court's rulings in the 2004 enemy combatant cases. Rather than seeing the decisions as a limitation on the Executive's inherent wartime powers, the Department offers them up as an affirmation of those powers. See Lyle Denniston, Defeat So Sweet: The Bush Administration's Strange Insistence That It Won the Detainee Cases, SLATE, Dec. 10, 2004, at http://www.slate.com/Default.aspx?id=2110910&.
See, e.g., Bruce Fein, Tackling a Root Cause of Terrorism, WASH. TIMES, Dec. 21, 2004, at A16 (urging that the Intelligence Reform Act be broadened so as to "make criminal the advocacy of jihad or sister terrorist activity against any nation or racial, ethnic, religious, or political group with the specific intent of provoking such terrorism"); Andrew C. McCarthy, Free Speech for Terrorists?, COMMENT., Mar. 2005, at http://www.commentarymagazine.com/article.asp?aid=11903029_1 (arguing that "[t]he nexus in militant Islam between advocacy and actual savagery is no longer contestable" and claiming that "the advocacy of terrorism in this day and age is entitled to no First Amendment protection"). For a penetrating critique of such commentary, see Paul K. McMasters, Criminalizing Terrorist Speech Is Tempting, But Wrong, The First Amendment Center, Jan. 9, 2005, at http://www.firstamendmentcenter.org/commentary.aspx?id=14641.
323 U.S. 214, 223-24 (1944) (holding that a conviction under an exclusion order barring Japanese-Americans from the west coast military sites was valid in light of the war with Japan and associated security concerns).
Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029, 1043 (2004).
For an imaginary, but frighteningly realistic account of America as a country still fighting a "war on terror" in 2011, written by the national coordinator for security and counterterrorism for Presidents William Clinton and George W. Bush, see Richard A. Clarke, Ten Years Later, ATLANTIC MONTHLY, Jan.-Feb. 2005, at 61. After a series of terrorist attacks on American soil occurs in 2005, Clarke posits, Congress's authorization of broad emergency powers under Patriot Act II could result in widespread use of pre-trial detentions and material-witness warrants to round-up illegal immigrants and ethnic groups suspected of harboring terrorists - all of this sanctioned by the Attorney General who invokes "the gravest imminent danger to the public safety," the very standard that justified the Japanese-American internment during World War II. Id. at 64-65.
Ellen Wulfhorst, Reuters, Erosion of Rights a Long U.S. War Tradition, Nov. 29, 2004, available at http://www.prometheus6.org/node/7716 (quoting Geoffrey Stone).
DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS 380 (1997).
This is the felicitous phrase used by Professor Daniel A. Farber to refer to several of the devices employed by courts and commentators in First Amendment analysis. See DANIEL A. FARBER, THE FIRST AMENDMENT 39-56 (2d ed. 2003).
See, e.g., Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 573-75 (1987) (employing overbreadth doctrine to invalidate a regulation prohibiting "First Amendment activities" within the central terminal at the Los Angeles International Airport).
See, e.g., Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 761-64 (1988) (holding unconstitutional a standardless licensing ordinance permitting unlimited administrative discretion).
See, e.g., United States v. Grace, 461 U.S. 171 (1983) (allowing public protests on the sidewalks outside the courthouse of the U.S. Supreme Court).
See, e.g., Texas v. Johnson, 491 U.S. 397, 412-20 (1989) (reversing conviction under state flag desecration statute that the majority viewed as a blatant example of content discrimination).
See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971) (the "Pentagon Papers" case).
See Abrams v. United States, 250 U.S. 616, 624 (1919); see also RICHARD POLENBERG, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH 132-53, 285-322 (1987).
Sedition Act of 1918, ch. 75, 40 Stat. 553 (1918) (emphasis added).
376 U.S. at 273-74 (holding that neither factual error nor defamatory content was enough to remove First Amendment protection from criticism of public officials).
403 U.S. 15, 25-26 (1971) ("Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. . . . [W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.").
415 U.S. 566, 573, 578-79 (1974) (holding that a flag desecration statute that subjects to criminal liability anyone who "treats contemptuously" the U.S. flag is void for vagueness).
See, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812-13 (2000) (content-based regulation of cable television); Texas v. Johnson, 491 U.S. 397, 411-12 (1989) (content-discriminatory regulation of flag burning).
See, e.g., United States v. O'Brien, 391 U.S. 367, 377 (1968) (four-pronged expressive conduct test).
Dean Alfange, Jr., Free Speech and Symbolic Conduct: The Draft-Card Burning Case, 1968 SUP. CT. REV. 1.
Id. at 52 (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)).
Al Odah v. United States, 124 S. Ct. 2686 (2004); Rasul v. Bush, 124 S. Ct. 2686 (2004); Hamdi v. Rumsfield, 124 S. Ct. 2633 (2004).
We offer this proposal more as a "thought experiment" than a fully developed theory. In other words, our objective here is to test the analytical waters, rather than to launch a fully crafted constitutional argument. The point is to do something about the problem identified in this Article. In sketching this proposal, we are fortified by our understanding that federal judicial review of national security measures during wartime (as the enemy-combatant cases have most recently demonstrated) is more likely to turn on the character of political action as bilateral (i.e., involving Congress's explicit authorization of Executive action) or unilateral (i.e., involving Executive claims of inherent authority) than on the framework of individual rights. For an analysis of the "constitutional tradition of judicial scrutiny" of the political institutional processes culminating in wartime security measures, see generally Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime, in THE CONSTITUTION IN WARTIME, supra note 18, at 161-97.
One wonders, of course, exactly what a congressional declaration of a "war on terrorism" would look like. That such a declaration strikes us as preposterous is indicative of the metaphorical character of the current "war." Even so, if Congress were to proceed to declare a "war on terrorism," there is a greater likelihood that it would be defined in a far more limited fashion than the President would have Americans understand it.
This should be understood to implicate either Holmes's reformulation of Schenck in Abrams or the application of the Brandenburg test to wartime cases.