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if we allowed the courts to decide, the 1st amendment would be applied so broadly as to make even your first example impossible to enforce - unless the radio station was stupid enough to come on the air and say "go bomb target X", which of course they would not do.

the reality is that if in 1942, we had German agents inside the US essentially acting as a "Nazi underground" - blowing up cargo in NY harbor headed for Europe for example - and a radio station was setup in NYC to deliver "john has a long moustache" type messages to them - FDR would have shut it down. legal or illegal by your standards? how are you going to prove in court that this radio station isn't just reading poetry when it issued those words, to shut them down via criminal charges?

if we allowed the courts to decide, the 1st amendment would be applied so broadly as to make even your first example impossible to enforce - unless the radio station was stupid enough to come on the air and say "go bomb target X", which of course they would not do.

We do in fact allow the courts to decide as that is their constitutional job to decide all cases in law and equity. As for the second part, this is why we have investigators and prosecutors who build cases when they suspect people of committing crimes instead of simply shutting down communications when they suspect someone is doing something wrong.

Thanks for your excellent comments on this thread. Consensus on squaring concerns for national security with civil liberties will probably never be possible in a time of uncertainty. But one more successful strike on this nation by the Islamofascists will, IMHO, lead to Presidential and Congressional actions that we could hardly have dreamed of five years ago. In that case, if a growing threat is perceived to be coming from US citizens, I expect to see Constitution Article I, Section 9.2 (suspension of habeas corpus) invoked.

At present, the battle between the President and the Courts is completely natural; both sides have important powers to guard. And one is now increasingly hearing talk of impeachment coming from the usual suspects, Boxer, Waters, Conyers etc..

But I am pleased that the President is leading forcefully, and I do not resent the judicial wrangling. The system is at work; however, the 2006 elections will probably be the only thing, outside of new terrorist attacks, to provide clarification as to where we are headed.

Good night and Happy New Year.