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O'Reilly Factor:

I'll be on this afternoon (some time between 5 to 6 Eastern, I'm told), defending Ward Churchill's constitutional right to urge that soldiers murder their officers. The transcript that I've been given of Churchill's speech says,

For those of you who do, as a matter of principle, oppose war in any form, the idea of supporting a conscientious objector who's already been inducted [and] in his combat service in Iraq might have a certain appeal. But let me ask you this: Would you render the same support to someone who hadn't conscientiously objected, but rather instead rolled a grenade under their line officer in order to neutralize the combat capacity of their unit? . . . (edit). . . Con[sci]entious objection removes a given piece of cannon fo[dd]er from the fray. Fragging and officer has a much more "impactful" effect.

Vile, but constitutionally protected under the Supreme Court's 1969 decision in Brandenburg v. Ohio, and I think rightly so, for reasons I'll discuss on the show.

UPDATE: The transcript that I got also included this follow-up exchange with the audience:

Question: When you're getting into a discussion of violence and appropriate violence and self-defense, of starting to look at um, what you're trying to build or what you're trying to create. For example 'fragging' an officer, what you were talking about before at the beginning of your talk, the sort of trauma that inflicts on that officer's family, back home, I feel like, is an important thing to take into account when your action is trying to accomplish in the first place. I don't really feel like I can articulate it properly but that's the General direction I'm heading in with it.

Ward: How do you feel about Adolf Eichmann's family?

Q: About, Who?

Ward: Eichmann was the bureaucrat who organized the logistics that allowed the holocaust to happen. He had a family; he was a good husband by all accounts and a loving father.

Q: I know I mean I think that we have to take into account the greater, I think we have to come at it from building a sense of place of being in your community, of not furthering trauma in the community. By 'fragging' that office you can create this you know . . . (Interrupted) How do I feel about a Nazi officer's family?

Ward: Should allow him to continue what he's doing or not?

Q: Absolutely not. But I think method is extremely important. It's important to have a long view . . . (Interrupted)

Ward: The Israelis hanged him.

This leads me to think that Churchill was urging the killing of officers, and not just abstractly speculating about what the moral status of such killing might be. I've tried getting an audio of the event, but couldn't -- this is the best I've got.

unhyphenatedconservative (mail):
If urging the murder of our officers by their subordinates does not give aid and comfort to our enemy, what does? Have we just decided that treason, the only crime defined in our Constitution, just doesn't exist any more?
6.29.2005 5:32pm
Larry (mail) (www):
Anyway, unhyphenatedconservative, I fail to see how you read Brandenburg to empower the government to prosecute people for suggesting that people disobey military orders or do things that they feel are necessary without a showing that Mr. Churchill's words actually had an effect on people that could not be counteracted with legal or intellectual actions. As an American, I am sure that you have read Brandenburg, because to talk about it without reading it would be worse than treason.

My prediction: Professor Volokh will be screamed at, and then claim to have had an intellectual discussion with Mr. Falafel.
6.29.2005 5:38pm
unhyphenatedconservative (mail):
Here's a shock. I don't regard Supreme Court opinions (nice word, opinion) to be Holy Scripture. The Court can be wrong; see its reading the words "public use" into irrelevancy in Kelo for just one recent example.
6.29.2005 5:45pm
Sam Heldman (mail):
Does the remainder of the transcript show that he was urging that soldiers murder their officers? Or do you know something else about the context that you think proves that he was doing so? Because this excerpt doesn't constitute urging. It is a question, which -- depending on context -- could have been leading up to "urging" (i.e., "you should render the same support to that hypothetical person") or "urging not" ("you should not render the same support ...") or philosophical musing ("if not, why not?").
6.29.2005 5:48pm
A Blogger:
unhyphenatedconservative,

What is your point, then? Do you think Churchill is guilty of the crime of treason? If so, can you explain why you think he has satisfied the elements of the crime of treason? Or is your point only that you think Churchhill is vile and that you disagree with modern First Amendment doctrine?
6.29.2005 5:48pm
Larry88 (mail) (www):
I don't think this guy: 1) ever read ANY Supreme Court opinion, yet alone Brandenburg unhyphenatedconservative; 2) knows who said what when; 3) has actually read 18 USC 2381, or any of the caselaw construing it in light of the constitution.

There is something unpatriotic about talking about a SCOTUS opinion without reading it. I don't think it is a crime, however.
6.29.2005 5:57pm
neo-libertarian (mail) (www):
By the way, my guess is that it's 5 to 6 Pacific. The Factor is on 8 to 9 Eastern.

And I agree, it's pretty despicable but he has the right to make a political or philosophical argument. If a soldier takes the advice then blame the soldier. If Churchill gives specific lessons or otherwise engages in a conspiracy to undertake the act, then it's different. As it i he's just an old has-been idiot that enjoys being oppositional and abstract.

If we use the dictionary definition of "aid and comfort" then an incompetent officer is guilty of treason. Anyone who opposed a war would be guilty of treason.
6.29.2005 5:58pm
unhyphenatedconservative (mail):
Elements of Treason
1. Giving aid and comfort to the enemy. Urging the murder of officers in a combat situation would surely give aid and comfort to the terrorists in Iraq or Afghanistan. This is particularly true in that the action he describes, rolling a grenade in a tent to kill officers to degrade unit capacity, has happened in the run-up to the war.

2. Testimony of two witnesses to same overt act: Presumably there were a few people in the audience.
or
3. Confession in open court: Would Churchill take the stand and admit these were his words?
6.29.2005 6:10pm
John Jenkins (mail):
unhyphenatedconservative, unless he made the statement in such a way that it was intended to immediately incite someone to act in a way that is illegal (say, murder an officer), his speech is constitutionally protected and rightly so.

Treason consists of giving aid and comfort to the enemy. Aid and comfort does not mean saying nice things; it is a term of art with a deeper meaning. Even someone saying that he or she hopes the U.S. loses a war, who is a U.S. citizen has not committed treason in the legal sense.

Supreme Court opinions may not be Holy Scripture, but they are the law and as citizens we have an obligation to follow the law, even if we disagree with it. We can change it, but we ought to follow it until we do (leaving aside the question of truly unjust or ultra vires laws).
6.29.2005 6:12pm
unhyphenatedconservative (mail):
"I don't think this guy: 1) ever read ANY Supreme Court opinion, yet alone Brandenburg"

That hurts. Deeply. You can insult my mother, kick my dog or key my car but don't ever insinuate that I haven't read any Supreme Court opinions.
6.29.2005 6:13pm
unhyphenatedconservative (mail):
John,

1. I don't consider his words particulalry nice, do you? But seriously, I am not calling for prosecuting those who say bin Laden is a hell of a guy, rather than a guy who belongs in hell. Urging troops to kill their officers and urging people to support those killers is a qualitatively different statement.

2. Just a thought on changing Supreme Court made law. There are generally two ways to do that: a)appoint new justices. But since those justices make a point not to take positions on specific issues and cannot be removed once they show their opinion on those issues, this is at best a crapshoot and cannot be seriously regarded as a way to change SCOTUS' edicts. b) amend the Constitution. But in the end, it is the Court that will determine what the new amendment says. Will the Court, after consulting the stars or reading the chicken entrails or whatever method it currently uses for constituional exegesis, interpret the amendment as its drafters and those who ratified it understood it to mean? Or will the Court do as it damned well pleases?

So long as the Court is viewed as the final and definitive arbiter of the Constitution, there is no meanigful way to change its rulings.
6.29.2005 6:22pm
Paul H. (mail):
Quote: "..As an American, I am sure that you have read Brandenburg, because to talk about it without reading it would be worse than treason..."

Ah yes, "unhypenated conservative" has committed the ultimate sin on this legal blog, reacting emotionally when he should have forced himself to remain a calm and collected scholar of the law.

The question of whether Ward Churchill can be tried as a civilian for incitement to treason was and (almost certainly will remain) an academic one for legal scholars to enjoy debating about on the head of a pin. Since the only recent example of a "fragging" in the current era involved the American Muslim sergeant in Kuwait just before the invasion; I doubt if someone like him could ever be inspired by the words of an "infidel" like Ward Churchill (presumably a follower of Native American religious beliefs, and therefore someone to be even more despised by fundamentalist Muslims than the other "people of the book").

However, we should certainly consider amending the Constitution to make the proof of treason a lot less onerous than its current classical "founding fathers" definition; I gather that when it was composed the framers had various precedent cases from 17th and 18th Century English Parliamentary history in mind.

I for one would be in favor of trying chaps like Churchill for treason under such an amended statute, and then as punishment stripping them of their citizenship and sending them forth to wander in the world far from the US (as was done to the malefactor in that great old story "The Man without a Country").

However, in the meantime I'll obtain a vicarious satisfaction from the thought of a "frag" being rolled into Ward Churchill's office one night, while he's hard at work preparing his next set of remarks. Heck, I might even propose the idea out loud, confident that I can come here to find outspoken defenders of my right to free speech.
6.29.2005 6:28pm
unhyphenatedconservative (mail):
"Ah yes, "unhypenated conservative" has committed the ultimate sin on this legal blog, reacting emotionally when he should have forced himself to remain a calm and collected scholar of the law."

Paul, you have convicted me without trial. However, I will forgive you and also take vicarious pleasure from your well wishes for Professor Churchill.
6.29.2005 6:34pm
Steve:
I must be stupid, or else my treason detector must not be set as high as everyone else's, but I completely don't see where he encourages anyone to engage in fragging.

His point seems to be something like this: "Fragging undermines the war effort much more than a single act of conscientious objection; so for those of you who would support a conscientious objector in the field, would you equally support a fragger?" Perhaps I am completely misunderstanding, but I don't see any statement that suggests fragging is a good thing. Maybe his crime lies in simply acknowledging the possibility.
6.29.2005 6:37pm
Igglephan:
Unless Ward Churchill was speaking to a group of armed soldiers, the imminence requirement cannot possibly be met, first of all. Second, the "Aid and Comfort" definition is necessarily modified by the 1st amendment, as construed and interpreted by Brandenburg. Since unhyphenated conservative -- U.C. (uchicago?) -- nevertheless does not feel that even opinions he has read are binding, let's consider the policy. First, we get the slippery slope argument. What "is" aiding and comforting if not this? Well, we could draw a line at the overt act requirement in conspiracy law. My worry is where we draw the line. Since President Bush in his infinite wisdom seems unwilling or uncapable of distinguishing between the war with Al Qaeda and the war with Iraq, the risk is that any speech with the "bad tendency" to undermine our efforts to police a guerilla war on top of some oil is tantamount to encouraging terrorist attacks domestically. This is a real problem. Also, it does have a chilling effect, because power corrupts and creeps -- eventually, if the law allowed Churchill to be convicted, what's to stop one from going after Cynthia McKinney? Howard Dean? Chuck Hagel? The slippery slope runs more effectively the other direction.

Neither the law nor public debate is well served when people do not recognize critical distinctions. Idiot comments by fraudulent professors can be refuted in the public arena. Nobody in the antiwar movement listens to this guy anyway -- and I should know having strenuously opposed the invasion of Iraq. Many, like me, are philosophically opposed to violence, partly for religious reasons, except in the most extreme cases where necessary to prevent the greater loss of life, and even then would not pick up a weapon ourselves (sort of like Bizzaro Vice President Cheney). If it really WERE the case that the speech was likely to create imminent and lawless action, there might be a case. Except that treason is also a result crime, not a conduct crime, so this case, not so much. You would need to prove actual harm, and getting Fox News Pundits to say "but it gets repeated on Al Jazeera every day" probably doesn't qualify. So, you would have to prove agreement, as well, which is not available when there is just one person making a dumb-___ speech.

If you have read as many opinions as to be insulting to insinuate otherwise, it should be clear that words in the constitution do not take on whatever meaning you think they should have, but require careful analysis, in light of policy, history, and other legal materials. I agree with you on Kelo, but am not so glib as to assume to know all, from a quick glance through the Constitution, and the castigation of Justices from all sides of the political spectrum as uninformed from the mere fact of disagreement with me.
6.29.2005 6:46pm
Igglephan:
Unless Ward Churchill was speaking to a group of armed soldiers, the imminence requirement cannot possibly be met, first of all. Second, the "Aid and Comfort" definition is necessarily modified by the 1st amendment, as construed and interpreted by Brandenburg. Since unhyphenated conservative -- U.C. (uchicago?) -- nevertheless does not feel that even opinions he has read are binding, let's consider the policy. First, we get the slippery slope argument. What "is" aiding and comforting if not this? Well, we could draw a line at the overt act requirement in conspiracy law. My worry is where we draw the line. Since President Bush in his infinite wisdom seems unwilling or uncapable of distinguishing between the war with Al Qaeda and the war with Iraq, the risk is that any speech with the "bad tendency" to undermine our efforts to police a guerilla war on top of some oil is tantamount to encouraging terrorist attacks domestically. This is a real problem. Also, it does have a chilling effect, because power corrupts and creeps -- eventually, if the law allowed Churchill to be convicted, what's to stop one from going after Cynthia McKinney? Howard Dean? Chuck Hagel? The slippery slope runs more effectively the other direction.

Neither the law nor public debate is well served when people do not recognize critical distinctions. Idiot comments by fraudulent professors can be refuted in the public arena. Nobody in the antiwar movement listens to this guy anyway -- and I should know having strenuously opposed the invasion of Iraq. Many, like me, are philosophically opposed to violence, partly for religious reasons, except in the most extreme cases where necessary to prevent the greater loss of life, and even then would not pick up a weapon ourselves (sort of like Bizzaro Vice President Cheney). If it really WERE the case that the speech was likely to create imminent and lawless action, there might be a case. Except that treason is also a result crime, not a conduct crime, so this case, not so much. You would need to prove actual harm, and getting Fox News Pundits to say "but it gets repeated on Al Jazeera every day" probably doesn't qualify. So, you would have to prove agreement, as well, which is not available when there is just one person making a dumb-___ speech.

If you have read as many opinions as to be insulting to insinuate otherwise, it should be clear that words in the constitution do not take on whatever meaning you think they should have, but require careful analysis, in light of policy, history, and other legal materials. I agree with you on Kelo, but am not so glib as to assume to know all, from a quick glance through the Constitution, and the castigation of Justices from all sides of the political spectrum as uninformed from the mere fact of disagreement with me.
6.29.2005 6:46pm
Igglephan:
sorry for the double-post -- my wireless was cutting in and out. I guess I'm making it worse. bye-bye. Oh, as a proud alumnus, I do not mean to denigrate Chicago Law. I just wish fewer of our alumni viewed their life's work as undoing the last 70 years of American jurisprudence.
6.29.2005 6:49pm
Bruce Moldovan (mail) (www):
O'reilly: "He said people should murder our brave soldiers. He should be executed for treason."

Volokh: "But the First Amend..." (interrupted)

O'reilly: "Hold on Professor, don't give me that First Amendment bull. He solicited murdering our troops!"

Volokh: "Can I talk?"

O'reilly: "No, cut his mike. [five minute rant about how Ward Churchill should be executed for treason and solicitation of murder ensues]. Thanks for coming Professor, we'll let the audience decide."

Volokh: [silently knods]
6.29.2005 6:51pm
TallDave (mail) (www):
He should be allowed to say it, and the university should be allowed to fire him for saying it.

Freedom for all!
6.29.2005 6:53pm
Larry (mail) (www):
Bruce, That is probably what will happen. Volokh will insist that there was an intersting exchange because he has this strange need pretend that people who pander to the lay people are smart.
6.29.2005 7:02pm
SupremacyClaus (mail):
Prof. Churchill is a good customer of the lawyer. Thus he has free speech rights.

Those commenting here have not paid a lawyer a fee. Thus the rules posted below these messages.

I suggest that Prof. Volokh invite Prof. Churchill to dinner and ask for his opinion of Israel, per the rules below.
6.29.2005 7:05pm
Wince and Nod (mail) (www):
I have observed Mr. O'Reilly cutting off people's mikes. Prof. Volokh does not behave in a manner which will get his mike cut. I do predict that Mr. O'Reilly will not like Prof. Volokh's points and will say, "I'll give you the last word", then Prof. Volokh will talk, and then Mr. O'Reilly throw in a sentence contradicting Prof. Volokh, and then they'll go to break.

Yours,
Wince
6.29.2005 7:35pm
Oldguy:
Doesn't anyone actually READ anymore?

If the quote offered is the extent of Churchill's statement, he does not advocate fragging officers. He is making a statement of fact that it has more impact (pun unintentional) than merely staying home. This is equivalent to stating that highway accidents effectively control population whithout encouraging someone to go out and cause accidents intentionally.

As an old guy who has seen much, including consequences of saying something unpopular, you should champion Churchill's right to make such statements.

In the case of Kelo, the Supreme Court did NOT take property from one private party and GIVE it to another private party. The court declared it is not their call. Such actions belong to the states. At this point, people in each state should be lobbying their state representatives to make sure such a horrible action can't happen in their state.
6.29.2005 7:39pm
ReaderX:
The 4th Circuit case of Rice v. Paladin Enterprises,
http://caselaw.lp.findlaw.com /scripts/getcase.pl?navby=search&case=/data2 /circs/4th/962412p.html, is perhaps the best example of a book being found not protected by the First Amendment without being connected to a specific individal crime intended by the utterer.

The book was "Hit Man: A Technical Manual for Independent Contractors." Paladin was sued by relatives of an entire family murdered by James Perry, a hired killer who had purchased the book prior to launching his new and horrifying career. "In soliciting, preparing for, and committing these murders, Perry meticulously followed countless of Hit Man 's 130 pages of detailed factual instructions on how to murder and to become a professional killer." The 4th Circuit, construing Brandenburg v. Ohio, concluded that Hit Man was not protected under Brandenburg under the circumstances of the case.

"Here, it is alleged...that Paladin aided and abetted the murders at issue through the quintessential speech act of providing step-by-step instructions for murder (replete with photographs, diagrams, and narration) so comprehensive and detailed that it is as if the instructor were literally present with the would-be murderer not only in the preparation and planning, but in the actual commission of, and follow-up to, the murder; there is not even a hint that the aid was provided in the form of speech that might constitute abstract advocacy...Aid and assistance in the form of this kind of speech bears no resemblance to the 'theoretical advocacy'...or any of the other forms of discourse critical of government, its policies, and its leaders, which have always animated, and to this day continue to animate, the First Amendment. Indeed, this detailed, focused instructional assistance to those contemplating or in the throes of planning murder is the antithesis of speech protected under Brandenburg."

Ward Churchill's statements, whatever else can be said about them, do not seem to have anything like the specific, detailed, technical "how-to" character found to cross the First Amendment line by "Hit Man." By the Paladin standard, Churchill's statements, however reprehensible, would seem to come closer to the abstract advocacy side of the line than the technical assistance side.
6.29.2005 7:44pm
Rich (mail):
Professor Volokh has repeatedly critized Slate.com's "Bushisms" column for quoting the president out of context, or for not providing a link to the full text of the president's remarks, if available. The least he can do, while calling Mr. Churchill's remarks "vile," is extend him the same courtesy.
6.29.2005 7:50pm
John Jenkins (mail):
Before you criticize Prof. Volokh, read more carefully. All he has is a transcript. He may have given us all of it, but we don't know. Given Churchill's record, I seriously doubt the rest of the speech is any less inflamatory, but it is possible.

At any rate, it would be more effective to ask whether such a transcript is available. A quick Google search brings up only an mp3 recording, but if you're inclined you can find links to it here.

SupremacyClaus, your comparison is inapt: the rules below reflect the desire of a private person to maintain a certain tone on his blog. It is suggested that Prof. Churchill be prosecuted by the government. You can, I assume, see the difference in that the Constitution does not apply to private parties (except for the 13th Amendment).

[why do I feel like that was a complete waste of time?]
6.29.2005 8:18pm
Bruce Moldovan (mail) (www):
Assuming that quote is accurate, then yes technically Ward C. didn't advocate fragging or killing or murdering anyone. But people will still be pissed off because HE DID NOT COME OUT HE WAS AGAINST IT. In our society, if you give a politically incorrect hypothetical example you are required to quickly confirm immediately thereafter that you are against it and that you love children (but, you know, not in a sexual way).

Still, most (O'Reilly included) will: 1) not read the comment with sufficient grammatical skills to discern its true meaning; 2) will only note the part where he talks about (but doesn't advocate) hypothetically murdering a U.S. military officer; 3) will notice the lack of immediate notation that speaker Ward didn't agree with killing our soldiers; 4) will start to scream about how Ward said we should kill our soldiers; and 5) will call for treason prosecution and conviction and execution.
6.29.2005 8:38pm
Chris Lansdown (mail) (www):
Bruce,

and (6) nothing whatever will come of it, and Ward Churchill will remain quite free and unprosecuted. Let's maintain a little perspective here; Bill O'Reilly isn't the attourney general. He's a citizen just like Ward Churchill is.

If Churchill has the right to point out to people that the action most in line with their beliefs is murdering officers, doesn't O'Reilly have the right to try to convince people that the action most in line with their beliefs is executing Ward Churchill for treason?

And ought not sensible people realize that neither Churchill nor O'Reilly is very important, and there are better things to try to require blood pressure medication over?
6.29.2005 9:33pm
Sam Heldman (mail):
Re the update, I still don't think that one can fairly infer that he -- who was, by the way, a nobody til some people decided to make him a celebrity pseudo-representative of "the left" -- was actually urging the killing of anyone. It could be -- I don't know that it is, or isn't, but my point is that no one else does either based on this transcript -- socratic method, meant to make the audience inquire of themselves about their own principles and beliefs. I often see, on this blog, arguably-awful quotes from various people given the benefit of the doubt, or parsed in way that takes the sting away. I am not saying that I am so pure that I am totally immune from double-standards of this sort, but it seems to be that Prof. Volokh is jumping to negative conclusions about a perceived political opponent rather than utilizing his often-seen mode of close textual analysis.
6.29.2005 9:34pm
Steve:
The update is just as incomprehensible as the original fragment to me. I have no idea what he was talking about; but I get the idea that he was referring to an act of murder, which is Bad, and that he was referring to a particular Nazi, and possibly suggesting some sort of equivalence thereby, which is Bad, and that he was particularly difficult to understand, which for a professor seems quite Bad. I therefore hasten to note that in the event he actually said a Bad thing, I completely disagree with it.

It is no wonder our government gets little done these days, because every public figure seems to spend his days apologizing for everything he said, apologizing for everything someone else said, distancing himself from everything that he doesn't want to apologize for because he secretly agrees with it, calling upon others to apologize for everything they have said, calling upon others to apologize for everything someone else said, apologizing for his prior apologies, distancing himself from the prior apologies of others, and calling upon others to apologize for their prior apologies which were deemed insufficient. At which point, it's time to go home and start again tomorrow.
6.29.2005 9:47pm
Mike Z (mail) (www):
"Ward: How do you feel about Adolf Eichmann's family?
Q: About, Who?"

How quickly they forget. It's that forgetfulness that lets Churchill get away with comparing out officers with Eichmann.
6.29.2005 9:51pm
Paul H. (mail):
Oh come now, Bruce Moldovan, let's not weep for poor Professor Churchill. He may be an unscrupulous poltroon who despises his country, but I wouldn't underestimate his intelligence -- I rather imagine he knows well the consequences of his remarks, and thoroughly enjoys whatever consternation he is able to raise in the ranks of those of us who despise him. (In spite of the almost irresistable urge for him to pose as a "victim" -- in that sense he has been corrupted by modern times, in contrast to his admired American Indian "predecessors").

I imagine he sees his role as one of a Plains Indian medicine man, one who arouses the warriors of the village to sally forth and shoot, bash, scalp, and dismember the members of an approaching cavalry troop. After all, "Custer had it coming", and so (as far as he is concerned) do his modern descendants -- US military officers currently serving in Iraq and Afghanistan.

Only a few more rhetorical steps and Churchill would cross the line from "what if" conditional language and allegory to open advocacy of domestic insurrection. Though he's probably too "smart" to do this and jeopardize his $100,000 salary (although the ability of the UC system to contort itself into knots to avoid revoking his tenure is not to be underestimated).

Still, one longs for him to take this final step to open advocacy, at least as a matter of simple esthetics. In the sense that open and honest advocacy of unrequited hatred and hostility is always to be preferred over "speaking with forked tongue" as a "snake in the grass". I think the more forthright of the 19th Century Plains Indians he purports to admire (and presumably emulate) would have agreed with this proposition.
6.29.2005 10:00pm
Michael McNeil (Impearls) (mail) (www):
Igglephan writes:
President Bush in his infinite wisdom seems unwilling or uncapable of distinguishing between the war with Al Qaeda and the war with Iraq....

Insurgents in Iraq are demonstrably incapable in recent months of taking on the Iraqi Police much less Coalition troops head-to-head; half a year ago they overran police stations (in, e.g., Mosul) largely at will -- but those days are gone, nowadays IP stand their ground when attacked and the insurgents get massacred in large numbers. As a result, the large bulk of the "fighting" originated by insurgents in Iraq these days consists of suicide bombers blowing up helpless Iraqi citizens.

It hardly takes the "infinite wisdom" that Igglephan likes to tout to know that the vast preponderance of the suicide bombing going on in Iraq is due to "Al Qaeda in Iraq," as Abu Musab al-Zarqawi's organization likes to call itself, and which delights in taking "credit" for these murders. Note that the aforenamed individual was given a field commission by Osama Bin Laden to head up the Iraqi subdivision of his organization.

Thus, very little "distinguishing between the war with Al Qaeda and the war" in not "with Iraq" would seem warranted. Igglephan might want to pick up a modicum more of Bush's "infinite wisdom" himself -- at least he does know that.
6.29.2005 10:22pm
SupremacyClaus (mail):
Prof. Volokh: Enjoyed the interview. Amusing the way a former high school teacher outlawyered 2 pros.

No one proposed a proper method of dealing with Prof. Churchill, except Prof. Churchill.
6.30.2005 12:53am
Igglephan:
Good thing that the Iraq war does so much for the 'hearts and mind' arguments to the Muslim world. Not to mention that the democracy-promotion theory and the flypaper theory are mutually inconsistent. (How ARE things in Sadr City, "coalition" stronghold that it isn't, anyway?) It is also tremendously circular to assert that the Iraq war is justified on the basis that a consequence of destabilization was to make it a breeding grounds for terrorists -- in fact, quite the opposite. The insurgents in the Sunni triangle are also quite unlike Bin Laden in terms of resources and ability to plan attacks on the United States, itself. Especially without any WMDs handy. It was a metastasized terror-state in Afghanistan that provided the impetus, not mid-80s Lebanon. And yes, I should be more like Bush, since he apparently "thinks about Iraq every day." Occasionally, I skip a day or too. Except when doing the lap-swimming -- anger at pointless waste of thousands of American and tens of thousands of Iraqi lives tends to get the kick-turns going strong. Which stands in contrast to the feelings of eternal repose knowing that all is for the best, save the lingering feeling that there is still a domestic Left to out-sarcasm us.

As for Churchill, knowing what we know about his views (which I hate to have to distinguish in the eyes of the right from my own), he probably would answer 'yes.' But, this is insufficient under Brandenburg, since we only look to content. In all likelihood, he did intent to send a message that fragging was a-OK. Lawyers certainly know the uses of leading questions.
6.30.2005 1:15am
David M. Nieporent (www):
I don't want to steal anybody's thunder here, but I can't believe there were all these posts about treason without anybody actually correctly describing what it is. "Giving aid and comfort to the enemy" is not the definition of treason. There's an important element left out of that definition: adhering to the enemy.

If that element weren't there, then every criticism of the government could be deemed treason. Not paying your taxes could be deemed treason. Now, under the Living Constitution standard, maybe our current justices would have no problem with that. But that's not at all what the founders intended. They wanted it defined very narrowly.
6.30.2005 2:14am
Kazinski:
Churchill certainly advocates fragging but not criminally. I really think its important that Churchill speak his mind as often and as prominately as possible. The more you see the names Dick Durbin and Ward Churchill together in the same sentence the better it is for the Republicans. When you've got the second ranking democrat in congress comparing the troops to Nazi's and then just when you think that's going to blowover Churchill comes along and compares 2nd Lts. to Eichmann and his family to Eichmann's family. Without free speech how do can you tell who the idiots are? And you can parses what he says oh so closely and claim that he didn't really say what he actually said, but the fact is the clear implication is that fragging an officer of the U.S. armed forces is no different than fragging Adolf Eichmann.
6.30.2005 3:06am
Ryan M:
Ward should recognize he is already preaching to the unpredictable looney bin. If Ward keeps promoting specific violent acts against Americans and one of his already dillusional followers acts upon it, the public will demand that he be prosecuted under some legal theory or Congress will respond by passing a treason-light type statute.
6.30.2005 7:05am
John P. (mail):
Good show. I especially liked the way Prof. Volokh came up so quickly with the hypothetical of the alumnus who withholds donations because he doesn't approve of his alma mater's affirmative-action policies. (He even did it with a funny voice.) Even B.O. seemed to have his hair blown back by that one.
6.30.2005 10:51am
Larry (mail) (www):
Hey ReaderX, It might help you to read Paladin Enterprises. In that case, it was agreed that the book did *cause* people harm.


Paladin, for example, has stipulated for purposes of summary judgment that Perry followed the above-enumerated instructions from Hit Man, as well as instructions from another Paladin publication, How to Make a Disposable Silencer, Vol. II, in planning, executing, and attempting to cover up the murders of Mildred and Trevor Horn and Janice Saunders. J.A. at 61. Paladin has stipulated not only that, in marketing Hit Man, Paladin "intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes," J.A. at 59, but also that it "intended and had knowledge" that Hit Man actually "would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire." J.A. at 59 (emphasis added). Indeed, the publisher has even stipulated that, through publishing and selling Hit Man, it assisted Perry in particular in the perpetration of the very murders for which the victims' families now attempt to hold Paladin civilly liable. J.A. at 61. [note 2] [242]





Nobody asserts that the 1st is a complete defense to all crimes where expression is an element of the crime (e.g. extortion, murder for hire, fraud, etc.)
6.30.2005 10:53am
Challenge:
I'm confused. Does Professor Volokh think Churchill is immune from termination or demotion, or just that his actions are not criminal?
6.30.2005 10:58am
Ryan M:
I hear Volokh is the youngest person on the short list for Supreme Ct nominee.
6.30.2005 11:41am
Bruce Moldovan (mail) (www):
Great job Prof. V, no mike cutoffs, and even got Bill'O to agree with you.

Based on the new transcript, it seems there can be no doubt that Ward Churchill does advocate fragging and murder, on an ends justifying the means basis. He's a total nut, no question about it.
6.30.2005 11:41am
Larry (mail) (www):
Whenever someone says "there can be no question" I know that there always is a question. This is like when the lay people say, "clearly."
6.30.2005 1:05pm
Wince and Nod (mail) (www):
Well I was wrong about Mr O'Reilly. He did not contradict Prof. Volokh. I agree that Prof. Volokh made an excellent point about how restrictions on speech will be turned against conservatives on campus, and that the example of Affirmative Action was excellent.

Yours,
Wince
6.30.2005 3:30pm
James968 (mail):
One point that Ward Churchill doesn't understand. A conscientious objector isn't a conscientious objector because he opposed the US Policy, but because he/she does not believe in killing in any form.

I'm really annoyed with the Pacafist=anti-bush assumption.
6.30.2005 9:30pm
Jon:
Larry,

Appreciate your interest. Suggest finishing reading the post. Thanks.
6.30.2005 10:13pm