Why the Judiciary Should Protect First Amendment Political Speech During Wartime: The Case for Deliberative Democracy

Abstract

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.