AP Photo/Bizuayehu Tesfaye Peter Berdovsky, accused of placing the devices around Boston.

AP Photo/Steven Senne One of the devices that caused the uproar in Boston.

What started as a seemingly harmless guerilla-advertising campaign promoting the quirky TV show "Aqua Teen Hunger Force" ended as a major police operation shutting down much of the city where two of the planes-turned-missiles took off on Sept. 11, 2001.

In these jittery times, two twentysomething artists were arrested for executing the hoax, which had people worried that a terrorist plot was afoot. Turner Broadcasting Systems Inc., the parent company of the Cartoon Network, was threatened with the possibility of a large fine to cover the cost of the police work.

A day after the marketing mishap — and after the snickering by some in the courtroom gallery during the artists' arraignment — we are left with questions about the limits of our freedom-of-expression rights since the terrorist attacks. What crime did the artists actually commit, given that commercial speech is protected?

Have we been overcome by a fear of terrorism, trading in the First Amendment for greater vigilance?

asap put the question to two First Amendment lawyers: Neil M. Richards of Washington University in St. Louis' law school, and Alan J. Howard of the Saint Louis University School of Law. Here's what they had to say.

Do you see our First Amendment rights being whittled away since Sept. 11? Has the test of falsely shouting "fire!" in a crowded movie theater become a quaint reminder of an easier time in the country?

ALAN J. HOWARD

As a general proposition if you look at the history of free speech in our country, it's not a natural progression toward more freedom — it's an ebb and flow.

In periods when we're particularly scared of something, be it communism, the red scare, whatever, not only does the government typically get more repressive because it believes it has to for national security, but the courts also become more willing to tolerate more repression.

That happened during the McCarthy era and that's the concern that after 9/11, that the federal government, not just when it comes to speech and not just the federal government — we see it with search and seizure with the Patriot Act — civil liberties to some extent is more of a luxury, something we care about when we can afford to be this tolerant of these liberties, but we've got to be more hardheaded and less tolerant in dangerous times.

NEIL M. RICHARDS

I think you're seeing the government taking things involving terror much more seriously and what that means is that there's much less room as a practical matter for humor, whether actually funny or ill-advised.

That said, even though the sort of aggressiveness with which police and other government officials are taking issues related to expression that implicate terrorism is one side of the balance, on the other there is still the law. There is still a robust, wide-open and vibrant right to engage in dissent, humor, even advertising that as a matter of doctrine, as a matter of what the law actually says, it really hasn't been infringed that much.

The difference I think that we're seeing is actual police practices. Meaning that at the ground level there is less of an opportunity for people to exercise their rights without attracting the attention of the police.

The legal standards haven't changed — at least in the Supreme Court. In the lower courts there have been challenges to various aspects of things like the Patriot Act on First Amendment grounds, to the warrantless wiretap program, which was argued (Wednesday) before the sixth circuit. In a number of cases courts have accepted First Amendment arguments against more aggressive police law enforcement practices associated with the war on terror.

The trial judge in, I think, Ohio struck down the warrantless wiretap program on First Amendment grounds. There was a case involving a particular provision of the Patriot Act that was stuck down on First Amendment grounds as vague.

But really in terms of cases there haven't been that many.

Howie Rumberg is an asap reporter based in New York.

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