David Shemano writes:
Why not simply adopt the case law developed in the United States Supreme Court regarding freedom of speech under the 1st Amendment? That case law, developed over 200 years, has dealt with the question both in the abstract and in the specifics, including wartime conditions.
============================ But that case law, among other things, was used to justify Jim Crow, discrimination against women, the incarceration of Japanese-Americans during WWII, and the hounding and jailing of left-wing dissenters at various times during US history.
A written Constitution and the accumulated jurisprudence can't prevent a determined government from using its powers to strike at the democratic rights of its political opponents and vulnerable minorities - especially as such actions are subject to review by judicial authorities who are drawn from the same social stratum and share the same ideology as the political leadership, and who are not inclined to substitute their own judgment for that of the state as to what constitutes a "clear and present danger" to public safety or national security. If we have not seen generalized assaults on the civil liberties of the mass of Americans, it is because a relatively stable history and high degree of popular consent has rendered this unnecessary. But I don't think it can be seriously argued that if the system were ever fundamentally challenged, the Supreme Court would throw out First Amendment rights, as it has done before, on the basis that an "illegal conspiracy" was intent on a "violent overthrow".
