43. During the Vietnam war, the US Supreme Court had to deal with the case of Brandenburg v. Ohio, 395 US 444 (1969), wherein the Court overruled Dennis (supra) and held that the State cannot punish advocacy of unlawful conduct, unless it is intended to incite and is likely to incite 'imminent lawless action'.
44. There is no doubt that the events of September 2011 brought new challenges to the US in the name of 'war on terror'. In this context, Attorney General John Ashcroft stated that "To those… who scare peaceloving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies…'. However, Bruce Ackerman, in his article, states that:
"The "war on terrorism" has paid enormous political dividends .... but that does not make it a compelling legal concept. War is traditionally defined as a state of belligerency between sovereigns .... The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties."
- Senate Judiciary Committee Hearing on AntiTerrorism Policy, 106th Cong. (Dec. 6, 2001) (testimony of Attorney General John Ashcroft)
- Ackerman, Bruce, "The Emergency Constitution", Faculty Scholarship Series, 113 (2004).