ABSTRACT
It should occasion little surprise that the Burger Court did not suddenly reverse Warren Court decisions, and that it sustained established free speech protections. The Supreme Court usually proceeds at a gradual pace—by chipping away at precedents it finds repugnant rather than any sudden and unqualified reversal of past decisions. To offer an early example, the justices actually began the process of refining or frustrating barely understood or acknowledged First Amendment law in the half-century after World War I ended. Only in the 1920s, however, would they even enter upon any substantial discussion of free speech and press, with decisions of the post-war years that curtailed both. A variety of government impositions upon freedom of expression occurred during and after the World War I. As it is typical in a time of crisis, the longer the emergency period continued, the greater the possibility that existing judicial thought and practices would become a fait accompli; that is, they would be continued in periods of relative tranquility, having their parallel in the unwillingness of executive branch officials to surrender expanded emergency powers once the emergency ended. Although emergency was thought to be transient, the line between emergency and normalcy has been blurred. Accordingly during and after both wars, a multiplicity of emergency-inspired statutes flooded forth from Congress and state houses: loyalty oaths, Red Flag laws, anti-alien and anti-radical statutes, deportation and denaturalization practices, registration orders for communists; and they remained in steady usage across the peacetime (non-“emergency”) decades.
