Some Observations on the First Amendment and the War on Terror

Abstract

Freedom of speech has traditionally suffered at times of war, and the War on Terror--with its related wars in Iraq and Afghanistan--is no exception: since 9/11, formidable pressures have come to bear on the constitutional freedoms of speech and press. As this paper discusses, these pressures have come from all three branches of the federal government. They include increased executive enforcement of existing laws, new legislation targeting terrorism-related speech, and apparent judicial reluctance to vigorously enforce existing constitutional protections. Notably, these allegedly significant impingements on the freedom of speech were achieved without any apparent change in constitutional doctrine. With the War on Terror showing no signs of abating, and with Donald Trump in the White House, this is an opportune time to take stock of these recent impingements on the important freedoms of speech and press, and what we can learn from them.