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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Monday, June 21, 2010 ::
    The Court also sees this case, not only as Cohen/Johnson rather than O'Brien (which would favor the plaintiffs as far as that goes), but also as an international security analogue of Brandenburg, with the standard appropriately adjusted in favor of law enforcement due to the judiciary's institutional lack of competence in this area:
    The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link
    ACCKKK! Well, moving right along....
    all the pieces in the puzzle before we grant weight to its empirical conclusions.
    So, while this is Cohen rather than O'Brien in that the statute is content-based rather than content-neutral, this is also unlike Cohen in that it doesn't turn at all on taste, good or bad:
    In this litigation, by contrast, Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.

    :: David M. Wagner 5:12 PM [+] ::
    ...

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