1 Brian Katulis, Freedom House, Liberated and Occupied Iraq: New Beginnings and Challenges for Press Freedom (2004), available at http://www.freedomhouse.org/template.cfm?page=131&year=2004&essay=12.Google Scholar

2 Brandenburg v. Ohio, 395 U.S. 444 (1969).Google Scholar

3 Id. at 447.Google Scholar

4 See, e.g., Blocher, Joseph, Institutions in the Marketplace of Ideas, 57 Duke L. J. 821, 829–834 (2008) (explaining the marketplace of ideas is the basis for Brandenburg and most other free speech decisions).Google Scholar

5 See, e.g., Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)(stating that government can only justify suppression when there is no time for “full discussion”).Google Scholar

6 Freedom House, Freedom of the Press 2003 Iraq report, (2003), http://freedomhouse.org/template.cfm?page=251&year=2003 (covering January –December 2002). Freedom House scored Iraq as having a 29 in its legal environment category, 39 in political influences and 27 in economic pressures, adding up to a 95 out of 100 score for total press freedoms; 100 is the worst possible rating. As a result, Iraq was rated the second worst country in the world for press freedoms, worse than Turkmenistan (92) Burma (94), and Cuba (94), and topped only by North Korea (96). Id. Also see, Kimberly Tabor, The Press in Iraq: An Overview, Nov. 2008, http://www.pbs.org/frontlineworld/stories/iraq/press.html (quoting Middle East Program Coordinator for the Committee to Project Journalists Joel Campagna as stating, “[a]s far as the Arab world, Iraq has one of the most restricted medias, if not the most restricted”).Google Scholar

7 Coons, Alissa Herbaly, Iraq's long road to a democratic free press, Montana Journalism Rev., Summer 2004, available at http://www.umt.edu/Journalism/student_work/MJR/MJR_2004/stories/03-Iraq.html; Freedom of the Press 2003 Iraq report, supra note 7.Google Scholar

8 Coons, supra note 8. See also, Sebag Montefiore, Stalin and Saddam: the Twin Tyrants, The Times Online, July 4 2004, http://www.timesonline.co.uk/tol/news/article453130.ece (describing how Saddam thought Joseph Stalin was his hero, teacher, and even alter-ego, and modeled himself governance after him in several ways).Google Scholar

9 Freedom of the Press 2003 Iraq report, supra note 7.Google Scholar

10 Jurgensen, John, This Just In:; Iraqis Want Own News; Fall of Hussein Spawns Newspaper Explosion, But Reliability Remains an Issue, Prompting Arrival of International Journalists’ Group, Hartford Courant, August 4, 2003, at Dl.Google Scholar

11 Id. (stating by August 2003, Iraqis had started 120–150 newspapers). Also see, Freedom House, Freedom of the Press 2004 Iraq report, (2004) http://www.freedomhouse.org/template.cfm?page=251&country=2952&year=2004 (covering from January to December 2003, and stating “the removal of Saddam Hussein's regime from power created unprecedented openings for press freedom in Iraq, with the emergence of hundreds of new publications and the opening of Internet cafes”). The Freedom House report gave Iraq a score of 66 for Press Freedoms, an improvement of almost 30 points from the previous year.Google Scholar

12 Coalition Provisional Authority Order 14 (2003), available at http://www.cpairaq.org/regulations/20030610_CPAORD_14_Prohibited_Media_Activity.pdf.Google Scholar

13 Id. § 2.Google Scholar

14 Id. §5.Google Scholar

15 The International Covenant on Civil and Political Rights, Article 19, section 2 states, “[e]veryone shall have the right to freedom of expression” including “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Section 3 subjects these rights “to certain restrictions, but these shall only be such as are provided by law and are necessary.” Four restrictions are enumerated, including “[f]or the protection of national security or of public order (ordre public), or of public health or morals.” Another restriction prohibits “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The International Covenant on Civil and Political Rights, § 2, (1966).Google Scholar

16 Initially a right of appeal was exclusively to the CPA Administrator Paul L. Bremer, as the CPA had legislative, judicial and executive authority in Iraq under U.N. Security Council Resolution 1483 (2003). CPA Order 100, however, anticipating the impending transfer of power to the Iraqis, amended Order 14 to give a right of appeal to an Iraqi Court of “competent jurisdiction.” Coalition Provisional Authority Order 100 § 5(a)(2004), available at http://www.cpairaq.org/regulations/20040628_CPAORD_100_Transition_of_Laws__Regulations__Orders__and_Directives.pdf.Google Scholar

17 Id. §5(e).Google Scholar

18 Katulis, , supra note 1; Pamela Constable, Newspaper Shuttered, Editor Held In Baghdad, The Washington Post, July 23, 2003 at A18.Google Scholar

19 Continetti, Matthew, Voices of Iraq, The Weekly Standard, July 24, 2003, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/002/928duokq.asp?pg=1 (providing “a glimpse into what the free Iraq press is saying about America and reconstruction”).Google Scholar

20 Arab stations in Iraq face curbs, BBC News, Sept. 23, 2003, available at http://news.bbc.co.uk/2/hi/middle_east/3131152.stm; Iraq puts sanctions on Arabic-language networks, CNN.COM, Sept. 23, 2003, available at http://www.cnn.com/2003/WORLD/meast/09/23/sprj.nitop.iraq.networks.Google Scholar

21 Al-Nahr, Naseer and Al-Awsat, Asharq, Iraq Bans Arabiya TV Channel, Arab News, Nov. 25, 2003, available at http://www.arabnews.com/?page=4&section=0&article=35534&d=25&m=11&y=2003.Google Scholar

22 Katulis, supra note 1.Google Scholar

23 Id.Google Scholar

24 Id.Google Scholar

25 See e.g., Chronology-Bin Laden messages since Sept. 11, 2001, Reuters, March 19’ 2008, available at http://www.alertnet.org/thenews/newsdesk/L07394110.htm (“Sept. 10 – Al Jazeera airs video of bin Laden and Al Qaeda second-in-command, Ayman al-Zawahri descending mountainside calling for jihad and praising the 9/11 hijackers.”).Google Scholar

26 See, e.g., Youseff, Nancy A., Iraq aid worker pleads for life; Margaret Hassan wept in an Al-Jazeera video, begging Britain not to send troops to Baghdad, The Philadelphia Inquirer, October 23, 2004 at A3. (explaining how hostage CARE Worker and Iraqi-British citizen, Margaret Hassan sobbed for her life on an exclusive Al-Jazeera video, begging Britain to renege on its agreement with the United States to send troops South to Bagdad). Al-Jazerra spokesperson, Jihad Ballout, defended the station's repeated airing of the video. “Al-Jazeera is not a political party, and it is not with or against anyone.” He added, “[w]e are just trying to deliver a message to the Arab audience.” Ballout also claimed the videos did not contribute to more kidnappings. Id.Google Scholar

27 Pein, Corey, Is Al-Jazeera ready for prime time?, SALON.com April 22, 2005, at 2, http://dir.salon.com/story/news/feature/2005/04/22/aljazeera/indexl.html.Google Scholar

28 PBS Online News Hour, Closure of Shiite Newspaper in Bagdad Sparks Protests, March 29, 2004, http://www.pbs.org/newshour/updates/shiitenewspaper_03-29-04.html.Google Scholar

29 Id.Google Scholar

30 Id.Google Scholar

31 Id.Google Scholar

32 Coalition Provisional Authority Order 64 (2004), available at http://www.cpairaq.org/regulations/20040320_CPAORD65.pdf.Google Scholar

33 CPA Order 65, § 3.Google Scholar

34 Iraq Const. arts. 100–03; Id. art. 36.Google Scholar

35 CMC's Interim Broadcasting Programme Code of Practice, § 1, 1.1 (2004).Google Scholar

36 Id.Google Scholar

37 See, e.g., Brandenburg, 395 U.S. at 445. (stating that mere advocacy of violence is protected speech).Google Scholar

38 Policy Recommendations, supra note 2 at 38.Google Scholar

39 Freedom House, Freedom of the Press 2008 Iraq report, (2008), http://www.freedomhouse.org/template.cfm?page=251&year=2008 (covering January to December 2007). The report gave Iraq a score of 22 in the legal environment category, and a total of 69; 100 being the worse score. This score is virtually unchanged from the previous year. Id.Google Scholar

40 Al-Jazeera bureau ordered closed, St. Petersburg Times (Fl.), August 8, 2004 at 19A.Google Scholar

41 Sabrina Tavernise, Iraqi Leader Orders Temporary Closing of Al Jazeera's Bureau in Baghdad, The New York Times, August 8, 2004, at 14.Google Scholar

42 Id.Google Scholar

43 XIX 19 [UNDP], Free Speech in Iraq: Recent Developments, (April 2007) (prepared by Sophie Redmond), available at http://www.article19.org/pdfs/publications/iraq-free-speech.pdf. The Iraq Prime Minister's office offered two explanations for the indefinite ban. First, the Iraq government said they had expected Al-Jazeera “to offer an explanation to the presented allegations or to officially request a description of the possible threat that the channel may be imposing” after its initial suspension, which it said Al-Jazeera failed to do. The government also said the indefinite ban was a response to Al-Jazeera violating its suspension by continuing to broadcast from Iraq and interview Iraqis on Iraqi soil. The government added the ban on operations will continue until “Al Jazeera TV headquarters sends an official response of their policies and motives within Iraq.” Iraq extends Al Jazeera ban indefinitely, ABC News (Austl.), Sept. 5, 2004, http://www.abc.net.au/news/stories/2004/09/05/1192353.htm.Google Scholar

44 XIX 19, supra note 20, at 16; Katulis, supra note 1.Google Scholar

45 XIX 19, supra note 20, at 16; Freedom House, Freedom of the Press 2007 Iraq report, (2008), available at http://www.freedomhouse.org/uploads/press_release/MENA_FTP_07.pdf. The report gave Iraq a score of 22 in the legal environment category, and a total of 70; 100 being the worse score. This is virtually the same as the previous year. Id.Google Scholar

46 Marc Santora and Damien Cave, Banned Station Beams Voice of Iraq Insurgency, The New York Times, January 21, 2007 at 8. The channel's founder, Meshaan al-Juburi, is a former Sunni member of Parliament who was indicted February 2006 on charges of embezzling millions of American dollars. Al-Juburi went into hiding, but American and Iraqi officials say he has funneled some of the money to Sunni insurgents and to his TV station. Id.Google Scholar

47 Id.Google Scholar

48 Id.Google Scholar

49 Id.Google Scholar

50 Egypt Pulls Plug on Al-Zawraa, AME INFO, Feb. 26, 2007, http://www.ameinfo.com/111837.html.Google Scholar

51 This does not mean other uses have not occurred, as watch group reports typically have a 1–2 year lag. Searches of newspaper articles and Google, however, also failed to show Order 14 uses.Google Scholar

52 XIX 19, supra note 20, at 16; Claudia Parsons, Iraq shuts TV channel for inciting sectarianism, Reuters, Jan. 1, 2007, http://www.reuters.com/article/idUSPAR14741920070101. The newscaster continued to wear black while reporting for at least two days after Saddam's execution. Id.Google Scholar

53 See supra note 52.Google Scholar

54 XIX 19, supra note 20, at 16.Google Scholar

55 For commentators supporting Brandenburg in Iraq, See, e.g., Symposium, Policy Recommendations Concerning Broadcasting in Iraq, 25 Cardozo Arts & Ent LJ 23, 50 (2007) (proposing standard for Iraq very similar to Brandenburg) [hereinafter “Policy Recommendations”]. Policy Recommendations was commissioned by the Iraqi Communications Media Commission. A longer version of the report was previously published by the Center for Global Communications Studies at Annenberg School for Communication, University of Pennsylvania, and is available at http://www.global.asc.upenn.edu/docs/CMCPolicyRec.pdf. Also see, Brenner A. Allen, Comment, A Cause of Action against Private Contractors and the U.S. Government for Freedom of Speech Violations in Iraq, 31 N.C.J. Int'L L. & Com. Reg. 535 (2005) (condemning the United States for Iraq's lack of speech protections and discussing possible solutions, including implementation of Brandenburg, and allowing Iraqis to sue the United States government).Google Scholar

56 Brandenburg, 395 U.S. at 445 (1969).Google Scholar

57 Id. at 446, n. 1.Google Scholar

58 Steven H. Shiffrin & Jesse H. Choper, The First Amendment: Cases –Comments – Questions ⁴³ (4^th ed. 2006)(stating in the first film, the Klan speaker told viewers they planned to March “on congress” and then divide into two groups, one to Florida and the other to Mississippi.)Google Scholar

59 Shiffrin & Choper, supra note 66.Google Scholar

60 Id.Google Scholar

61 Brandenburg, 395 U.S. at 448.Google Scholar

62 Id., note 2.Google Scholar

63 Id. at 450, (Black, J., concurring)(using that now famous “clear and present danger” terminology).Google Scholar

64 Blocher, , supra note 5.Google Scholar

65 Russell Wearer & Arthur Hellman, The First Amendment: Cases, Materials, and Problems 3 (2002).Google Scholar

66 Id.Google Scholar

67 Abrams v. United States, 250 U.S. 616, 630 (1919)(Holmes, J., dissenting). Abrams upheld a conviction under the Espionage Act for distributing 22,000 circulars encouraging workers strikes in ammunition factories during World War I. The circulars said they encouraged the strike because the United States was “hypocritical,” “cowardly” and “capitalistic” and the ammunition would kill not only Germans, but “our dearest, [and] best, who are in Russia and are fighting for freedom.” Other circulars had messages like, “[k]now you lovers of freedom that, in order to save the Russian revolution, we must keep the armies of the allied countries busy at home.” The Court found the defendants’ intent was to frustrate the war, and incite an American socialist revolution. Id. at 622–23.Google Scholar

68 Indeed, by reinvigorating debate, the expression of false ideas like that in the KKK video, may even speedup their rejection by society.Google Scholar

69 Abrams, , 250 U.S. at 630 (1919)(Holmes, J., dissenting).Google Scholar

70 Whitney, , 274 U.S. at 377 (Brandeis, J., concurring). Whitney upheld the conviction of a woman who helped organize the Communist Labor Party, which violated the 1919 criminal syndicalism Act by advocating violent overthrow of the government. Id. at 633.Google Scholar

71 Abrams, , 250 U.S. at 630.Google Scholar

72 Whitney, , 274 U.S. at 377 (Brandeis, J., concurring)(“To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”).Google Scholar

73 Freedom of the Press 2008 Iraq report, supra note 33.Google Scholar

74 Reporters Without Borders, War in Iraq (2009) http://www.rsf.org/special-iraqen.php3 [Hereinafter Reporters Without Borders Website](last accessed March 19, 2009)(stating that approximately 63 journalists were killed in Vietnam from 1955 to 1975).Google Scholar

75 Committee to Protect Journalists, Attacks on the Press 2007: Iraq (2008), available at http://cpj.org/2008/02/attacks-on-the-press-2007-iraq.php.Google Scholar

76 Reporters Without Borders Website, supra note 54 (last accessed March 19, 2009) (stating that 14 journalists remain kidnapped, and two missing).Google Scholar

77 Reporters Without Borders, Iraq – Annual Report 2007 (2008), available at http://www.rsf.org/article.php3?id_article=20761 [hereinafter RSF 2007 Report].Google Scholar

78 Freedom of the Press 2008 Iraq report, supra note 33; RSF 2007 Report, supra note 56.Google Scholar

79 Attacks on the Press 2007: Iraq, supra note 54.Google Scholar

80 Id.Google Scholar

81 Reporters Without Borders, Iraq – Annual Report 2008 (2008), available at http://www.rsf.org/article.php3?id_article=25432.Google Scholar

82 Freedom of the Press 2008 Iraq report, supra note 33; Freedom of the Press 2007 Iraq report, supra note 54.Google Scholar

83 Freedom of the Press 2008 Iraq report, supra note 33; Freedom of the Press 2007 Iraq report, supra note 54.Google Scholar

84 See, e.g., The Whitehouse, Iraq Agenda, http://www.whitehouse.gov/agenda/iraq/ (stating that President Obama plans to have all U.S. troops withdrawn from Iraq by the summer of 2010).Google Scholar

85 Al-Marashi, Ibrahim, The Dynamics of Iraq's Media: Ethno-Sectarian Violence, Political Islam, Public Advocacy, and Globalization, 25 Cardozo Arts & Ent LJ 95, 124 (2007). Although independent media outlets exists, they do not have access to the funds that the political parties can provide, and are therefore not viable competition in the media industry. Id.Google Scholar

86 Id. at 125 (describing a four-stage process to a “conflict media: l)a strong ideology 2)control over a mass medium/media 3) psychological preparation to hate and 4) a call to violence. Al-Marashi describes the third step as “the most crucial” as it prepares the audience for violence. An important part of the preparation is misinformation: “as an uninformed audience is easier to manipulate.” Preparation includes presenting rumors and conspiracies to the public “as the opinion of the ‘ordinary man’ of that particular ethnic or sectarian group” so as to deepen factions. Preparation also includes “framing peace with other groups as ‘impossible’ and framing those who seek reconciliation as ‘traitors'” as well as “demonizing” and “dehumanizing” other groups. Id.Google Scholar

87 Id.Google Scholar

88 Levinson, Charles, Iraq's ‘PBS’ Accused of Sectarian Slant, The Christian Science Monitor, Jan. 10, 2006, at 6; Louise Roug, The Conflict in Iraq; Unfair, Unbalanced Channels; Despite U.S. efforts to promote journalistic standards in Iraq, sectarian divisions are bleeding over onto a dozen TV stations, Los Angeles Times, March 28, 2006 at A17.Google Scholar

89 Al-Marashi, , supra note 104, at 127.Google Scholar

90 Id. Also see, e.g., supra note 23 and accompanying text(describing the Saddam audio clip played by Al-Arabiya, that urged murder of Iraq Governing Council members).Google Scholar

91 Coons, , supra note 7. Also see supra notes 7–10, and accompanying text (describing propaganda training).Google Scholar

92 Index on Censorship, Options for media development in Iraq 3 (2004), available at http://portal.unesco.org/ci/en/files/18577/11129470501Iraq_media_development.pdf/Iraq_media_development.pdf. This report was commissioned by, but does not necessary reflect the views of, the United Nations Educational, Scientific and Cultural Organization (UNESCO). Also see, Freedom of the Press 2008 Iraq report, supra note 33.Google Scholar

93 Coons, supra note 7.Google Scholar

94 Lidsky, Lyrissa Barnett, Brandenburg and the United States’ War on Incitement Abroad: Defending a Double Standard, 37 Wake Forest L. Rev. 1009 (2002).Google Scholar

95 Id. at 1027. (citing Mohammed el-Nawawy & Adel Iskandar, Al-Jazeera: How the Free Arab News Network Scooped the World and Changed the Middle East 61 (2002)).Google Scholar

96 UNICEF, Iraq Statistics, http://www.unicef.org/infobycountry/iraq_statistics.html (covering from 2000–2006).Google Scholar

97 NationMaster, Education Statistics, http://www.nationmaster.com/graph/edu_ave_yea_of_sch_of_adu-education-average-years-schooling-adults. In comparison, children in the United States have 12 average years of school, more than any other country in the world. Id.Google Scholar

98 Lidsky, , supra note 74, at 1020–1021.Google Scholar

99 “Policy recommendations,” supra note 63, at 43.Google Scholar

100 See, e.g., Ross, Susan Dente, An Apologia to Radical Dissent and a Supreme Court Test to Protect It, 7 Comm. L. & Pol'y 401, 411 (2002) (citing Zechariah Chafee, Jr., Free Speech in the United States 565 (2d ed. 1942) as stating “Popular ideas need no protection.”).Google Scholar

101 Russell & Hellman, supra note 48, at 10.Google Scholar

102 Id.Google Scholar

103 Ross, , supra note 120.Google Scholar

104 Page, Susan, Democracy's Support Sinks, USA Today, March 20, 2007, at 1A, available at http://www.usatoday.com/news/world/iraq/2007-03-19-iraq-pollday2_N.htm.Google Scholar

105 Kaplan, David E., Iraqi public opinion: bad news and good, U.S. News and World Report, August 17, 2006, available at http://www.usnews.com/usnews/news-/articles/060817/17iraq.htm?s_cid=rss:site1. Data for Iraq was not available.Google Scholar

106 Id.Google Scholar

107 The Pew Global Projects Attitude, GLOBAL OPINION TRENDS 2002 –2007: A RISING TIDE LIFTS MOOD IN THE DEVELOPING WORLD 56–57 (2007), http://pewglobal.org/reports/pdf/257.pdf Google Scholar

108 Id. at 57.Google Scholar

109 Ross, , supra note 123, at 411 citing Zechariah Chafee, Jr., Free Speech in the United States 565 (2d ed. 1942).Google Scholar

110 See supra notes 96–98 and accompanying text.Google Scholar

111 Ajami, Fouad, What the Muslim World is Watching, Summer 2002 Transnational Broadcasting Studies, available at http://www.tbsjournal.com/Archives/Spring02/ajami.html.Google Scholar

112 CPA Order 100, supra note 15.Google Scholar

113 XIX 19, supra note 20, at 16.Google Scholar

114 Iraq Const., supra note 27; CMC's Interim Broadcasting Programme Code of Practice, supra note 29.Google Scholar

115 Russell & Hellman, supra note 48, at 14.Google Scholar

116 Id. at 12.Google Scholar

117 See, e.g., Robert Pape, Dying to Win: The Strategic Logic of Suicide Terrorism 28, 78 (explaining terrorism as a strategy for “weak actors,” usually against foreign occupiers of their country).Google Scholar

118 Id.Google Scholar

119 Kantor, Elisa, Note, New Threats, Old Problems: Adhering to Brandenburg's Imminence Requirement in Terrorism Prosecutions, 76 Geo. Wash. L. Rev. 752, 780 (2008).Google Scholar

120 Id. at 781.Google Scholar

121 Id.Google Scholar

122 Id.Google Scholar

123 Kingsley Int'l Pictures Corp v. Regents, 360 U.S. 684, 689 (1959).Google Scholar

124 See e.g., David D. Haddock & Daniel D. Polsby, Understanding Riots, The Cato J., Spring/Summer 1994, at 147, 150 (stating that crowds preceding riots often form spontaneously.).Google Scholar

125 Controlling riots in the United States are difficult after they start because of deterrence difficulties; budgetary constraints which limit police forces make it unlikely a rioter will be caught, and riot often even overwhelm police officers, forcing them to pull back. In addition, constitutional constraints constrain police punishment of those they do catch. Id. at 148–49, 154.Google Scholar

126 Baker, C. Edwin, Genocide, Press Freedom, and the Case of Hassan Ngeze, Scholarship at Penn Law (2003), available at http://lsr.nellco.org/cgi/viewcontent.cgi?article=1004&context=upenn/wps.Google Scholar

127 Id.Google Scholar

128 On The Media: Digging Our Own Grave (NPR Radio broadcast May 7, 2004), available at http://www.onthemedia.org/transcripts/2004/05/07/02. The broadcast featured guest Steven Schwartz from the Weekly Standard, who criticized Iraq's incitement laws. He said that when the First Amendment passed and over the history of the United States, “this was a pretty chaotic country. We had come out of the Revolution; there were rebellions; there were Indian wars; slave rebellions had begun….” Id.Google Scholar

129 Florence, Justin, Alien and Sedition Acts of 1798, Enotes.com, http://www.enotes.com/major-acts-congress/alien-sedition-acts (noting the intensely partisan prosecutions, and that all the editors were Republican—since the United States had only about fifty Republican-leaning newspapers at the time, this constituted a substantial portion of the Republican press).Google Scholar

130 Belt, Gordon, The Sedition Act: James Callender, Prosperity Project.com, Sept. 5, 2008, http://posterityproject.blogspot.com/2008/09/sedition-act-james-callender.html. Ironically, jail only made Callender's pen sharper. While imprisoned, he published the second volume of his pamphlet, in which he described Adams as a “repulsive pedant, a gross hypocrite, and an unprincipled oppressor” and “one of the most egregious fools upon the continent.” Id.Google Scholar

131 Christopher M. Finan, From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America 6 (2007).Google Scholar

132 Donohue, Laura K., Terrorist Speech and the Future of Free Expression, 27 Cardozo L. Rev. 223, 241 (2005).Google Scholar

133 Quoted in Minersville School District v. Gobitis, 310 U.S. 586, 596 (1940) overruled by West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) (holding the government could force students to salute the flag to foster national unity)Google Scholar

134 Finan, supra note 155, at 9–10.Google Scholar

135 Id.Google Scholar

136 The Court used the bad tendency test in three cases, Schenk v. United States, Frohwek v. United States and Debs v. United States, all written by Justice Oliver Wendell Holmes. Id. at 28. Holmes partly justified this test in Schenk by arguing that there was a different constitutional standard for freedom of speech in peacetime: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” 249 U.S. 47, 52 (1919).Google Scholar

137 Finan, supra note 155, at 9–10. In Schenck, the Court unanimously upheld the conviction of the American Socialist Party General Secretary General who distributed 15,000 leaflets to recently drafted men. 249 U.S. at 47. The leaflets said the draft was “involuntary servitude,” and motivated by capitalist greed. It urged the men to “[a]ssert your rights–Do not submit to intimidation.” Charles Schenck spent six months in prison. Alex McBride, Landmark Cases: Schenck v. U.S. (1919), PBS, http://www.pbs.org/wnet/supremecourt/capitalism/landmark_schenck.html.Google Scholar

138 United States v. Debs, 249 U.S. 211, 211 (1919).Google Scholar

139 Robert Peck, The First Amendment & Advocacy of Violence: An Overview, The First Amendment Center, http://www.firstamendmentcenter.org/faclibrary/overview.aspx?id=11452.Google Scholar

140 Finan, supra note 155, at 35.Google Scholar

141 Id. at 143.Google Scholar

142 Id. at 44.Google Scholar

143 Id.Google Scholar

144 Id. at 104.Google Scholar

145 Geoffrey R. Stone, Perilous Times: Free Speech in Wartime 251 (2004)Google Scholar

146 Finan, supra note 155, at 139.Google Scholar

147 Id. at 9–10.Google Scholar

148 See generally, Finan, supra note 155.Google Scholar

149 Whitney, , 274 U.S. at 376 n. 2 (Brandeis, J., concurring).Google Scholar