A recent speech by the British Member of Parliament George Galloway (transcript by MEMRI; please let me know if you know of material errors in it) is truly remarkable: Galloway, apparently directing his remarks to Arabs in Arab countries, says, among other things,
Two of your beautiful daughters are in the hands of foreigners — Jerusalem and Baghdad. The foreigners are doing to your daughters as they will. The daughters are crying for help, and the Arab world is silent. And some of them are collaborating with the rape of these two beautiful Arab daughters. Why? Because they are too weak and too corrupt to do anything about it. So this is what Sykes-Picot will do to the Arabs. Are you ready to have another hundred years like the hundred years you just had? . . .
[T]he Iraqi resistance is not just defending Iraq. They are defending all the Arabs, and they are defending all the people of the world from American hegemony.
This reminded me of an old, hard, and unresolved problem of U.S. free speech law, which I've written briefly about before (in a problem in my First Amendment textbook, briefly in this article [PDF pp. 4, 13, 65-66]), and on the blog here and here. Imagine that Galloway was American and was tried in America, and that a jury concluded that Galloway's intention wasn't just to criticize the war, but actually to get Arab listeners to help our enemies in Iraq, and to get some of them to join the insurgents. (I can't speak definitively of Galloway's intention, but this strikes me as a not implausible assumption given the content and seeming target audience of his speech and of his past speeches, which would be relevant to the intent question.) Under U.S. law, this would constitute treason: Aiding the enemy with the intention of aiding the enemy. Would the First Amendment nonetheless protect such speech?
Treason is thankfully a rarely litigated crime in the U.S., but the closest cases seem to be the Axis propaganda cases. Consider Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950), which upheld the treason conviction of Mildred Gillars, a U.S. citizen who worked for the Nazi propaganda service during World War II, and who recorded the "Vision of Invasion" broadcast while working for the Nazis:
This program was a radio play of an hour's length broadcast in the month before the Allied invasion of Europe. The scenes alternated between soldiers on a ship in the invasion and the home of an American soldier. The ship is sunk, the soldier is killed and he appears in a dream of his mother. The general theme is expressed in the following colloquy between the American mother and father:
"Mother: But everyone says the invasion is suicide. The simplest person knows that. Between seventy and ninety percent of the boys will be killed or crippled for the rest of their lives.
"Father: What can we do about it?
"Mother: Bah. We could have done a lot about it. Have we got a government by the people or not? Roosevelt had no right to go to war."
Witnesses who participated in the broadcast testified that the purpose was to prevent the invasion of Europe by telling the American people and soldiers that an attempted invasion would be risky with respect to the lives of the soldiers.
Of course, Gillars was intending to undermine American morale, and under our hypothetical Galloway would be intending to help enemy recruiting and gathering of other resources. Yet this wouldn't matter for substantive treason law purposes, and I doubt that it should matter for First Amendment purposes.
It seems to me there are several candidate First Amendment rules here:
Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. (Not all such speech is punishable under treason law, which requires a purpose of helping the enemy, but perhaps the speech could be punished under some other statute.)
I think this would be an awful test, because it would punish a lot of important, valuable, and eminently legitimate speech that criticizes the war. As I've argued here, "During war as during peace, Americans have a right and responsibility to evaluate their government's actions, and decide whether the actions — or the administration — need changing. To make these decisions we need to hear various views on whether the war is going well, whether we're morally in the right in our actions, and so on. An American during the Vietnam War, for instance, should have had the right to argue to his fellow citizens that the war was unwinnable, that the U.S. should pull out, and that voters should support an antiwar candidate. His arguments and others like his might well have helped the enemy, if they weakened U.S. resolve, made it more likely that the U.S. would indeed withdraw, or emboldened the Viet Cong." Notheless, his speech should have been protected.
Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."
I think this too is probably too broad. Perhaps the speaker's intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.
Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. That might be a distinction between Gillars and Galloway (I know of no evidence that he is being paid for his pro-insurgency speech); but it would be an odd distinction in U.S. constitutional law, given that speech is routinely protected despite being done for money. Most writers, filmmakers, journalists, and other speakers are paid for their speech.
Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. This too might be a distinction between Gillars and Galloway (again, I know of no evidence that he is actually coordinating his speech with the insurgents). As I've written here, I think this is probably the best test — but I'm far from sure of it, and I'm even less sure that courts would agree with me.
Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.
Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. (Note that the woman convicted for being Tokyo Rose was eventually pardoned, apparently because of evidence that she acted under duress, which is why I prefer to focus on Axis Sally's conduct rather than Tokyo Rose's; but the purely constitutional question is the same for both.) The Conclusion of Tom Bell's article suggests that this might be the right test, though it also endorses an employed-by-the-enemy test.
Are there other reasonable options, for instance ones focused on the intended audience (domestic vs. foreign), the sort of aid, the magnitude of aid, or what have you? What do people think is right? Please post your thoughts in the comments, and think through the counterarguments. (For instance, if your observation is simply that George Galloway's speech is clearly protected because all criticism of the government is protected, you might want to at least explain how this would apply to Axis Sally's criticism of the government. Conversely, if your observation is that speech should be unprotected whenever it seems likely to help the enemy, you might want to confront the question of how we can have meaningful elections when no candidate can criticize the war effort — or even criticize the war's morality — for fear that such speech might help the enemy and might thus lead him to be thrown in prison.)