(Lethbridge Undergraduate Research Journal, 2007-06) Derrick, Geoffrey J.
The intersection of an individual's First Amendment right to political speech
and the executive branch's war policy has been the subject of much recent
scholarship. The unique challenges of the War on Terror have led Judge
Richard Posner of the Seventh Circuit to adopt the view of the late Chief
Justice William H. Rehnquist that the judicial branch ought to adopt a
deferential posture towards First Amendment rights during wartime. This
paper responds by defending the value of open public debate about the
war policy for three reasons: to uncover executive branch secrets, to clarify
how peacetime First Amendment precedent like Brandenburg v. Ohio applies during wartime, and to guard against the executive branch
indefinitely asserting wartime powers during the War on Terror.