War and preparation for war create serious strains on a system of freedom of expression. Emotions run high, lowering the degree of rationality which is required to make such a system viable. It becomes more difficult to hold the rough give-and-take of controlled controversy within constructive bounds. Immediate events assume greater importance; long-range considerations are pushed to the background. The need for consensus appears more urgent in the context of dealing with hostile outsiders. Cleavage seems to be more dangerous, and dissent more difficult to distinguish from actual aid to the enemy. In this volatile area the constitutional guarantee of free and open discussion is put to its most severe test. It is not surprising, therefore, that throughout our history periods of war tension have been marked by serious infringements on freedom of expression. The most violent attacks upon the right to free speech occurred in the years of the Alien and Sedition Acts, the approach to the Civil War, the Civil War itself, and World War I-all times of war or near-war.' Yet it was not until the end of World War I that judicial application of the first amendment played any significant role in these events. Up to this point there had been no major decision by the Supreme Court applying the guarantees of the first amendment. Then, in 1919, the Court issued the first of a series of decisions dealing with federal and state legislation that had been enacted to restrict free expression during the war, and thus began the long development of first amendment doctrine. During World War II, in contrast to prior wartime periods, freedom of speech to oppose the war or criticize its conduct was not seriously infringed. This unusual turn of events may have been due, in part, to the increasing judicial protection afforded free expression through the first amendment, particularly by the liberal decisions which began in 1930 under the Hughes Court, and the ensuing education of public opinion that those decisions engendered. Some of these gains
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