The ‘war on terror’ weakened the first amendment. Now we desperately need it

‘There’s no question that the court’s record during the war on terror has strengthened the hand of our authoritarian president and weakened our own.’ Photograph: Shawn Thew/EPA

Congress ratified the first amendment in 1791 but the supreme court didn’t breathe life into it until after the first world war, when prosecutions of antiwar protesters led the justices Oliver Wendell Holmes and Louis Brandeis – and then, fortunately, other justices as well – to realize that US democracy would be undermined, not strengthened, by allowing the government to suppress disfavored political opinions.

Repression during the cold war led the court to better protect the freedom of association, and government efforts to cover up official ineptitude and criminality during the Vietnam war spurred the court to better protect the freedom of the press. It took time, but in each of these instances the court responded to wartime repression by developing new legal doctrine that more robustly protected first amendment freedoms.