In The Shadow Of Terror: The Illusive First Amendment Rights Of Aliens

Despite a sustained period of peace and prosperity in the United States, Congress has enacted considerable anti-terrorism legislation, which-like past laws based in fear of foreign threats to the national security-erodes freedom of expression. This article provides a political, historical and legal background before examining this legislation and its application in cases affecting the rights of First Amendment claimants. The article finds that most courts, including the United States Supreme Court, have tended to use a formulaic strict scrutiny analysis of the legislation that endorses the government's position that, for example, the Antiterrorism and Effective Death Penalty Act of 1996, is a content-neutral response to the important interest in reducing the threat of terrorism. The article argues that the courts instead should adopt an analysis based on the real intent and discriminatory effects of the law to find it is impermissibly content based, overbroad and vague.