Over at Slate Dahlia Lithwick wonders why the war on terror has not produced great free speech cases as had previous wars. I offer two thoughts. First, as many others have observed, the war on terror is not like the other wars. For whatever, we are not currently behaving like we are a country at war. While the financial impact of the war is significant on the state fisc, few people are directly affected. This war is more the national subconscious than in the national consciousness.
Second and maybe related to the first point, the free speech issues that are likely to arise in the context of the war on terror may not resemble the contexts of the past. Instead, they may be closer to the leaks of State Department cables by WikiLeaks. We will see a First Amendment confrontation, if not sooner, when the government prosecutes WikiLeaks for publishing sensitive military intelligence regarding our involvement in Afghanistan, Iraq, or some other area. Already Representative Peter King is calling for the prosecution of WikiLeaks and its founder. My guess is that what we're seeing is a new form of protest and one that is effective and dangerous to the State. Consequently, the clash between the First Amendment and the government is inevitable.