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Treason and Speech:

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:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.)

Goober (mail):
Utterly lamentable analysis. Really now! This is emphatically not what I come to the Volokh Conspiracy for.

Let me just propose a ground rule: If the "aid and comfort" supposedly given to the enemy is more often postulated on freerepublic.com than actually proved in real life, let's not dignify it with extended hypotheticals.

Speech is speech. It rises to action only when it flowers into "Go burn down the draft office---now!" Or, in this context, the wilful disclosure of troop movements, and the like. Not when it's the expression of political opinions, no matter how hateful some in the politburo might find them.
8.18.2005 2:28pm
Goober (mail):
Let me add that Mr. Galloway's comments are totally unforgiveable, and it pains me that they're only the second most infuriating thing found in this post.
8.18.2005 2:30pm
eponymous coward:
Of course, there's a rather long tradition of outrageousness from British MPs, from John Wilkes to George Galloway...
8.18.2005 2:34pm
just a thought:
I'm not sure we need to reach the aid/criticism question you pose. To me, Galloway's comments seem closer to garden-variety incitement because he used a rape analogy, and did so with the obvious (and judicially noticeable) knowledge his audience is particularly sensitive--often fanatically so, as stonings of rape victimes demonstrate--to invocations of "purity".

For purposes of your tally, I choose #5.
8.18.2005 2:40pm
Eugene Volokh (www):
Goober: Just to make things clear -- you think that Axis Sally, Tokyo Rose, Lord Haw-Haw, and the other Axis propagandists thus had a constitutional right to make their broadcasts, and the Allies couldn't try them for treason, yes?

That's not an implausible view, and one that Tom Bell, for instance, might agree with -- though even he's ambivalent on that -- but it would, I think, be distinctly a minority view. If the position that Axis Sally et al. are punishable is "utterly lamentable" and "infuriating," then I suspect your beef (whether a sound one or an unsound one) is with the U.S. legal system more generally, and not just with my post.

Eugene
8.18.2005 2:41pm
Preferred Customer (mail):
It strikes me that working directly for the enemy, or coordinating with the enemy, is not speech but conduct that can itself be treasonous quite apart from anything the enemy pays you to say. The treasonous action is thus accepting pay in exchange for work, not speaking into the microphone. This provides justification for the "paid by the enemy" test that doesn't rely on drawing lines between different kinds of speech.

It seems to me, intuitively, that Goober's formulation is correct--any political speech, no matter how odious or helpful to the enemy, should be protected.
8.18.2005 2:42pm
von (mail) (www):
Goober:

Aren't we talking about a "go burn down the draft office now" type of scenario? Let's say Galloway concluded his remarks by saying that it is the duty of every Arab to go to Iraq and fight the British: wouldn't that be the equivalent to the "incitement" approach that you appear to advocate? And what if Galloway was clever enough to intend to imply such a statement, but was clever enough to stop just short of saying it?

As for the merits of the post, I'd argue for a position somewhere between Volokh's and Bell's. It strikes me that "coordinating" is a poor choice of word, because it's not a word of common juridical significance; on the other hand, I think Bell's reliance on "employment" is too narrow. I'd advocate something along the lines of the following:

Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually an agent of the enemy.


Agency* has a well-defined legal meaning; it's broader than the term "employment," in that one can be an agent without receiving compensation or entering into an employer-employee relationship [all that's required, in essence, is an agreement]; and it seems to strike a middle ground between Volokh's and Bell's positions.

von

*Note that I've excluded apparent agency from the definition -- for (I hope) obvious reasons.
8.18.2005 2:46pm
Steve:
Such anger! I have been a harsh critic of several of Prof. Volokh's past posts on seditious liberals, but I see nothing wrong with this post. It reminds me very much of discussing the law of rape in criminal law class, where the questions were things like "Is honest, but unreasonable, belief in consent a defense? How about an honest and reasonable, but mistaken, belief?" You could discuss similar issues with respect to the law of conspiracy: how definitive an "overt act" should be required? Or should mere state of mind be sufficient? I see no reason why the law of treason cannot be similarly analyzed without people getting all hot and bothered.

Then again, I guess the discussion of the law of rape got quite heated as well, considering my professor ended up writing a law review article about the class. The sordid details, for the record, can be found at 102 Yale L.J. 481.
8.18.2005 2:48pm
Tom Holsinger (mail):
Eugene,

Consider the various rules for criminal conspiracy in the context of your list.
8.18.2005 2:51pm
bittern:
To you cowardly but dangerous authoritarians, seeking only velvet censorship, I say "BRING IT ON" with macho studly attitude.
8.18.2005 2:52pm
von (mail) (www):
FTR, I think bringing conspiracy into this is barking up the wrong tree. One can commit treason in the course of a conspiracy or one can conspire to be treasonous; neither, however, answers the question at hand: what is treason.
8.18.2005 2:55pm
Preferred Customer (mail):
"Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually an agent of the enemy."

Perhaps I am missing something obvious, but if a person is an agent of the enemy, why do we need to discuss speech at all? One cannot claim that the First Amendment grants you the right to act as an agent for the enemy, anymore than one can claim the First Amendment grants you the right to rob banks so long as you talk while doing it.
8.18.2005 2:59pm
JohnAnnArbor:
Prof. Volokh:

Tokyo Rose got railroaded, and for that, she was pardoned later. (She never gave up her American citizenship while in Japan, and was forced to broadcast words others wrote for her.) Axis Sally and Lord Haw Haw did what they did willingly and in full cooperation with the enemy. So the cases aren't the same.
8.18.2005 3:15pm
Shelby (mail):
Setting aside the conspiracy question, might some other speech-related crimes supply guidance? For example, fraud is not protected by the First Amendment, but typically is accomplished at least in part through speech.
8.18.2005 3:15pm
Shelby (mail):
JohnAA:

Did you read all of Eugene's post? He addressed that in Point 6.
8.18.2005 3:18pm
alkali (mail):
"Speech is unprotected whenever the speaker knows that it's likely to aid the enemy." ... 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.

I think this might be a reasonable test depending on what "likely to aid" means. If it means something like "assist the enemy in a specific objective" other than having some vague and unspecified effect on morale, it might be workable.
8.18.2005 3:18pm
von (mail) (www):
One cannot claim that the First Amendment grants you the right to act as an agent for the enemy

That's a reasonable perspective, although there's a significant question in my mind as to whether agreeing to be an agent of the enemy itself giving "aid or comfort" to the enemy, or whether a subsequent act pursuant to that agency is required -- in which case the issue would be whether speech constitutes an act.

On the other hand, if your view is correct, it suggests that Professor Bell's view is actually 6, not 5 (because 5 is illusory).
8.18.2005 3:19pm
NickM (mail) (www):
Apropos of employment by the enemy, what if the person in question had been previously in the employ of the enemy - George Galloway received Oil-for-Food vouchers from Saddam. Clearly that employment (in the sense of Galloway receiving remuneration) ended years ago, but should its past existence be legally relevant?

Nick
8.18.2005 3:19pm
Hans Bader (mail):
George Galloway is the clearest example of a traitor, since his remarks are both directed to inciting violence against his own country's troops in Iraq, and could foreseeably do so in the imminent future.

Even outside the treason context, and within the boundaries of America, whose legal system is much more protective of free speech, this calculated incitement to violence would be unprotected.

Recall how Newsweek's article on desecration of the Koran -- which, unlike Galloway's remarks, was not directed to inciting any violence at all, and was clearly protected -- triggered murderous riots in Afghanistan.

Too bad the United Kingdom doesn't have the death penalty any more. Galloway should be hanged.
8.18.2005 3:26pm
Jam (mail):
How was it handled during the War of 1812?

To "aide and comfort" means that someone knowingly and willfully provides shelter, materiel, information to a person (not a citizen) engaging in war against any of the member States in the Union. It has nothing to do with speech.
8.18.2005 3:27pm
von (mail) (www):
For example, fraud is not protected by the First Amendment, but typically is accomplished at least in part through speech.

Interesting. Here's some information that may make the discussion more productive:

The federal mail/wire fraud provide some of the most expansive definitions of fraud, so let's discuss them here. Mail and/or wire fraud essentially requires (1) a scheme or artifice to defraud and (2) a mail or wire transmission that furthers the scheme or artifice to defraud.

Note that the mailing or wire transmission need not itself be fraudulent; it can be completely truthful. A newspaper clipping can be the basis for a mail or wire fraud charge. An agreement to purchase a car which is on it's face truthful can also be the basis for a mail or wire fraud charge.* What matters is whether the transmission (truthful or no) was sent in furtherance of a scheme to defraud.

If applied to the treason analysis, it seems to me that such a standard would yield position #2. Here's the first question that springs to my mind, however: Do we believe that political speech is entitled to only so much protection as we afford commercial speech? (The answer to this question has generally been "no".)

*I.e., promissory fraud, which traditionally was not recognized under the common law (but now is in most states).
8.18.2005 3:31pm
von (mail) (www):
BTW:

(1) Sorry for the typos in the above;

(2) Mail fraud is at 18 USC 1341; and,

(3) Wire fraud is at 18 USC 1343.
8.18.2005 3:34pm
JohnAnnArbor:
Shelby:

Oops. My bad.

Still, her story is fascinating. She's still alive, amazingly enough.
8.18.2005 3:37pm
Tom Holsinger (mail):
von,

Compare Eugene's No. 4 refers to "coordinating his speech with the enemy" with the conspiracy definition of "agreeing to act in concert". IMO the rules of conspiracy do apply to Eugene's No. 4.
8.18.2005 3:42pm
Syd Henderson (mail):
She was born on the 4th of July!
8.18.2005 3:46pm
Jam (mail):
On the analogy with fraud, how does that apply when someone is expressing their opinion (based on religious, political, historical, etc) against the government's foreign policy, especially, carried through war?

When opposing a war, would it not be, then, the time when speech is at the most important and in need to be protected?
8.18.2005 3:49pm
DK:
IMHO this post is reading _way_ too much into Galloway's words. Note the ellipsis. These two comments -- the rape analogy and the praise of the resistance -- are from separate interviews he gave to two different TV stations. Assuming arguendo that speech can be considered treason, I don't think that selective quotation from two separate incidents can meet the constitutional standard of "two witnesses to the same overt act."

I say this as someone who thinks Galloway is total scum, and who thinks Jane Fonda should have been convicted of treason for sitting in a North Vietnamese anti-aircraft gun. Both quotes here are crazy and deserving of ridicule. But when you takem them separately, they just don't sound treasonous.

The first quote sounds like a lot of environmentalist rhetoric about globalization "raping" the earth. It is stupid and inflammatory, but it couldn't be treasonous, b/c it doesn't even mention or support America's enemies, it just criticizes America, and it mentions Arabs, a group with whom the US is not at war. Only when tied to the second quote does it sound like Galloway is leading a terrorist recruitment drive.

The most interesting thing Galloway said BTW is in the full version of the second quote -- he claimed he had never actually met any members of the resistance. It makes me wonder if he actually has considered the legalities of treason and is taking care to avoid claiming any actual adherence to the enemy.
8.18.2005 3:52pm
Carol Anne:
Great topic, given the loose use of charges of "treason" by some who resent any disagreement with their views (largely on the extreme right).

I cannot speak to the law (which is one of the reasons I read this blog), but perhaps I can contribute an OED definition, under the category "Law.": Treason: "Violation by a subject of allegiance to the sovereign or to the State, esp. by attempting or plotting to kill or overthrow the sovereign or overthrow the Government."

It seems to me that by this standard Galloway might be considered a "fellow traveler," or a mischief-maker, or ill-advised. Personally, I'd find it hard to call it treason to ask citizens or leaders of another country what their motives are, even if couched in language that appears to be inimical to Galloway's country's interests. The incitement argument attributes a motive to Galloway that may or may not have evidence to support it, so I remain in doubt about that.
8.18.2005 3:56pm
DK:
I'd like to note further I am NOT defending Galloway as a person or his overall point of view -- I'm just saying his quotes here are not enough evidence for the alleged crimes.

If he had actually given a single speech talking about rape and calling on young Arabs to rise up and join the resistance, I think that could easily be interpreted as treason. But there is no evidence here that he did that. I think he is probably choosing his words carefully to avoid anything that crosses the line into actual incitement of violence.
8.18.2005 3:59pm
just me (mail):
This is a bit off-topic from treason, but is anyone else offended by the anti-Semitic slant to Galloway's claim that Jerusalem is in the hands of "foreigners" ??

OK, lots of Euro-Jews and Russian Jews and others went to Israel, but I don't think anyone challenges that there was a continuous Jewish presence in the area all along. Even if you contest their right to have formed Israel as a sovereign nation, how does that make them foreigners? It's bad enough that some folks refer to Jewish citizens as "foreign" even after centuries America, Germany, wherever, but in ISRAEL???

Or is Galloway's crack aimed at Americans, not Israelis, as the foreigners? Is this because the U.S. is running the show through our Israeli puppets? But wait, I thought THEY were the puppeteers, and WASPs like Pres. Bush are the puppets. I am so confused.
8.18.2005 4:02pm
T Groan (mail):
Has Galloway always been on the Chickenhawk hitlist or did his candid and truthful comments to the American Congress put him in their rabid sights?
8.18.2005 4:04pm
Joe Power (mail):
Shouldn't an actual declaration of war factor into whether or not speech can be prosecuted as treason?

Actual wars are a special case where the continued existence of the nation is at stake. These faux-wars we keep entering, where Congress tries to have it both ways by telling the President to take action while not officially putting the country on a war footing, seem to go on interminably. Do we really want to allow restrictions on speech to do the same?

And without an actual declaration of war, who decides what's a real war and what isn't? Should NORML members be rounded up for opposing the "War on Drugs"? Should the Libertarian party be outlawed for speaking out against the "War on Poverty"?

"The cry has been that when war is declared, all opposition should therefore be hushed. A sentiment more unworthy of a free country could hardly be propagated. If the doctrine be admitted, rulers have only to declare war and they are screened at once from scrutiny. ... In war, then, as in peace, assert the freedom of speech and of the press. Cling to this as the bulwark of all our rights and privileges."
- William Ellery Channing
8.18.2005 4:08pm
Bill Harshaw (mail) (www):
I'm not a lawyer and so will rapidly lose myself among your distinctions. As a matter of history, though, it seems to have made a difference whether the enemy is next door, as in 1861-5 or 1798, or overseas; whether the conflict is constitutionally declared, as in WWI and WWII, or simply a "cold war" or "war on terror"; whether the speaker represents a significant position or the fringe. On the last point, consider Charles Krauthammer's column this week--he's willing to protect the free speech rights of the Nazis in Skokie, ILL (for you youngsters, a famous ACLU case decades ago) but not the rights of a real movement. While what he says may be bad law, I think he appeals to a "common sense" feeling among many--rights are too precious to be wasted on big threats.

I'd also suggest some thought about how Lincoln treated his opponents and our handling of the Berrigans and Fondas of the 60's, or how the Brits handled Lord Russell throughout his life.

And a speech that is permissible in the context of a "cold war", or a "war against terror" might be impermissible in the context of a constitutionally declared war or a civil war. My own feeling is that "treasonous speech" should be applied only to speakers representing an insignificant position during a constitutionally declared war who lay out a course of specific actions (which Gillars doesn't seem to have, from the excerpt)
8.18.2005 4:08pm
Jam (mail):
Please stay on subject.

BTW, I am an "extreme right-wing," now called paleo-conservative. Not too long ago I was the type of person the left were calling traitor because of my vocal opposition to Clinton's foregin policy. Remember?

Now it is the new strain of "conservative" that is calling me traitor.

My question still stands, how was speech handled during the War of 1812? Remember those pesky Connecticut Yankees and the Hartford Convention?

http://www.yale.edu/lawweb/avalon/amerdoc/hartconv.htm
8.18.2005 4:18pm
Prince Paul (mail):
From Brandenburg v. Ohio: "Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

Referring to both Dennis and Schenck, Justice Douglas writes in Brandenburg: "When one reads the opinions closely and sees when and how the 'clear and present danger' test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment."

The problem with your view of the First Amendment, from where I stand, Mr. Volokh is that it takes advocacy far too seriously. The result is always a stifling of political speech to the ends of a particular viewpoint. The Free Speech Clause's prominence and importance in our culture has much to do with a respect for the marketplace of ideas and concepts of self-expression and personhood. Sacrificing those priorities in order to serve the cause in Iraq, or anywhere else, is as offensive to me as Mr. Galloway's speech is likely to be offensive to you.
8.18.2005 4:18pm
JoeSlater (mail):
Interesting topic. I'm curious about who can count as "the enemy." Obviously in Iraq, we have a declared war which we're fighting, so that's relatively easy. But is that the only situation in which there can be an "enemy" for this purpose? What if no war has officially been declared, but we're doing a lot of fighting (think about some of our past "police actions"). What if there's no lengthy, major shooting war, but we are, explicitly or covertly or maybe even not entirely legally backing one side (like many of our incursions into Central and South America)? And is it even necessary that fighting have broken out in which our troops are involved for there to be an "enemy"? What if we're just backing one side financially?

As to the possible definitions, I'm curious about why it would matter if there was some sort of formal employment relationship between the enemy and the alleged treasonous person.
8.18.2005 4:27pm
Matt Barr (mail) (www):
One probably irrelevant but nonetheless interesting wrinkle is that if Galloway were an American Congressperson (equivalent to MP) speaking while on duty, he would be immune from any crime.

I don't have the wherewithal to look into this too deeply but the distinction that struck me most while reading the post is that Gillars and most of the hypotheticals are Americans speaking to Americans. E.g. "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"... Absolutely, but does that even apply if the speaker is talking to the enemy? In other words, does it make a difference that Galloway is an MP talking to Arabs, that is, coloring himself in the auspices of the British government and stating that the insurgency is good and the Western and Jewish "occupiers" evil?

It seems like a smart lawyer could argue that this makes the speech go beyond speech to conduct in some way so as to render it unprotected. Just a kneejerk reaction, though, as I say.
8.18.2005 4:33pm
devil's advocate (mail):
I think treason is tied to actual "agency" or "coordination" and actual "aid and comfort." banning "treasonous" speech, if the contents of the speech are legally accurate facts and political opinions (as opposed to falsehoods), seems to have costs that outweigh the benefits.

what is more likelyt to incite enemies of america in iraq--their own leaders, the reported news in general (fox or al-jazeera) or a british MP's speech? c'mon, until galloway is actually signing people up for al-queda or the iraqi insurgency and paying their way over there, he is just speaking. over here there is just so little we can do to support the war effort, so the beligerent ones among us (but yet are reluctant to enlist) want to lock up the "traitors" over here. get real, the war is over there. 0.0001% of arabs have even heard of george galloway. how can you trace the harm of a roadside bomb to his remarks? should causation not apply to treason?

so the benefits of prosecuting treasonous speech (as opposed to any actual spying or passing of materials) seem low, no benefit to the war effort is likely, and the costs in terms of the perception of us turning against ourselves and providing very public martyr status to the george galloways of the world seem to be relatively higher. I know everyone has it out for this galloway chap, but what's the point again, besides our own pissed-offness at his outrageousness?

now I am basing this all on a basis of "true" or "opinion" speech, which it appears galloway was doing. Non-arab militaries do indeed reside in jerusalem and baghdad--it's a fact, good or bad. the rest is opinion (that it is bad and arabs should throw them out).

if galloway was to go around saying that the coalition was boiling arab women in vats of acid without any factual basis, that would be a different story in my view. that is more akin to fraud, which crminialized not WHAT you say, but the relationship of WHAT you say to the objective truth. if the difference in your statement and the truth is combined with evidence of intent to aid the enemy, then that is justifiably a candidate for treason. add actual coordination with the enemy (such as taking oil-for-food cash) then you have an even more lock tight case (in my view).

FYI--galloway denies getting any oil-for-food cash, and a lot of the rumors around that case come from one of history's greatest liars (and US-gov't accused traitor) Ahmed Chalabi. a much hyped US Senate hearing produced no evidence that he had received bribes for his support of saddam's iraq, and turned into a publicity coup for galloway.

if people dont like the quasi-fraud test I vaguely outline, then the "coordination" or "agency" factors alone could be a good treason test. like political 527 ads, you can say basically the same thing, but if you coordinate it with the candidate it is illegal. that makes almost anything illegal if it is coordinated, but protects all political speech if it is not. strict both ways? e.g., you can say insurgents should blow up US troops because they are in Iraq on an immoral, unjust mission, but if you coordinate your message with insurgents (i.e. to say it right before or after an attach) as a US citizen, then you are on the hook and then may god have mercy on your soul.

to those who want to hang galloway...c'mon, use your brain, not your hormones. you'll make a martyr out of him and make the pro-war side look facist (as you are doing with your reactionary desperation). if he is coordinating with the enemy I bet it is to infuriate the war gov't in the UK and its supporters into irrational distraction, rather than recruit actual insurgents. don't fall for it, ignore him (or tap his phone can catch him in a call with Zarquawi, then get him). I am confident prospective insurgents look to their friends, relatives, leaders, arab media, and mullahs for that, not some grey haired white guy in parliament.
8.18.2005 4:33pm
Matt Barr (mail) (www):
Shouldn't an actual declaration of war factor into whether or not speech can be prosecuted as treason?

The Rosenbergs would probably be all for a declaration of war being necessary in order for it to be possible to commit treason.
8.18.2005 4:35pm
Stacy (mail):
IANAL, but I think Jam has a good point. You're all conflating speech and actions. The FFs were (obviously) especially concerned with protecting the right to speak one's mind, which is one reason that in a Constitution that takes pains to be a general framework instead of a list of specifics, there's a clause dealing specifically with one particular named crime: treason.

That clause says that the crime of treason shall consist solely in levying war against the United States, or in giving aid and comfort to their enemies. I can see where certain speech might be considered comforting to an enemy. But if the FFs intended that interpretation, it's certainly the odd man out on the list. 'Aid' and 'levying war' are clearly actions, not speech. I have a hard time believing that after being so specific about protections for speech elsewhere in the Constitution, the authors then limited it again by an uncertain implication, set into language that was included precisely because they wanted to define a particular crime in no uncertain terms.
8.18.2005 4:36pm
Joshua (mail):
Daniel Pipes seems to think this entire discussion is moot:

[T]he crime of treason is now as defunct as blue laws, prohibition of alcohol, or laws banning miscegenation. I predict that, short of radical changes, no Western state will again prosecute its citizens for treason.
8.18.2005 4:43pm
Tom Holsinger (mail):
Eugene Volokh's subject asks when speech alone crosses the line into treason. We should stick to that and not venture into treason in general.

There is a particular problem when speech alone as treason involves intent, because that implies that the same speech by two different people, one who is clueless but lacks malice (or is so retarded as to be incapable of forming the necessary mens rea), and one by Osama bin Laden's naturalized U.S. citizen, but more evil, twin, is treated differently - with the former not constituting treason, but the latter does.

This fine line issue is addressed by the definition of conspiracy. Note that criminal conspiracy has an overt act requirement not found in civil conspiracy, and that proof of treason has its own special requirements.
8.18.2005 4:44pm
greg sperla (mail):
Correct me if I'm wrong here but doens't the first amendment only prohibit Congress from making laws that restrict speech? I don't know if Congress necessarily needs to pass a law against Treason since it is specifically mentioned in the constitution and therefore might be a constitutional statutue, or whatever you would call that.

"Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

Being only an undergraduate, I'm not familiar with how the federal courts deal with laws embedded into the constitution as opposed to regular legislation passed by Congress. In fact, until now I'm not sure there was ever a distinction.

Are we suggesting then that through incorperation that the first amendment's protection of speech is now apart of the due process clause of the fifth amendment? Doesn't Article III's specific requirements for the prosecution of treason already imply all the due process provisions necessary (two witnesses, etc)?

Given this, I think its possible to argue that the courts were specifically given the power to prosecute treason under art. III and that congressional action is not necessary. If the courts are simply exercising the power granted to them in art. III then grounds for appeal based on first amendment protections would not apply.

I know these are technical questions that don't address the important constitutional questions you asked but if anyone could shed some light on them for me I'd appreciate it.
8.18.2005 4:46pm
Steve:
The Rosenbergs would probably be all for a declaration of war being necessary in order for it to be possible to commit treason.

Thing is, the Rosenbergs were convicted of conspiracy to commit espionage, not treason.
8.18.2005 4:53pm
Matt Corbett (mail) (www):
There is one problem (which I guess relates to all treason issues) which is that the effect is taken for granted. Suppose someone takes an obvious act of treason, i.e. taking a commision in an army of a country with which we are in a declared state of war, but through plain incompetence makes decisions that ultimate hurt the enemy's cause (for example, he messes up coordinates calling in an airstrike, resulting in many enemy soldiers dying). Suppose then he is captured and tried for treason, and he defends himself by arguing that his actions did not provide aid and comfort because his behavior as an enemy officer so so innefectual that it ended up hurting them (the enemy). I presume this defense would not save him, since the mere act of (freely) becoming an agent of the enemy was in and of itself treason, regardless of his subsequent behavior.

I think the same parallel could apply to speech issues. As has been mentioned, determining whether or not speech actually aids the enemy can be difficult, especially if intent is involved (again, what if someone intends to aid the enemy with speech, but is so bad at it that he hurts the enemy's cause?). I think Eugene's option #4 is closest, because it deals with consorting with the enemy. The speech is irrelevent if the person has freely chosen to become an agent of the enemy (I prefer Prefered Customer's use of agency rather than coordinating with with).
8.18.2005 4:58pm
Eric Blair (mail):
Given the definition of treason against the US cited above, what would constitute 'adhering' and 'giving aid and comfort'?
8.18.2005 4:59pm
David in NYC:
Well, it seems that Goober is closer than most, and Just A Though is closer. Anyone else who says that all political speech should be protected - full stop - is wrong. And T Groan should ask soldiers doing the fighting what they think of Galloway's words, and then ask why he's on somebody's hit list. But he probably won't because he doesn't care about their lives as much as the lives of "innocents". And how many other people out there can't see the difference between criticizing the War/the US/ the President, and soliciting acts against his own country? Saying that Arabs should rise up and kill people is not the same as saying "This war is illegal".

Galloway's words are not treasonous, mainly because he doesn't say anyone should attack the UK (his own country) or British forces. If he were American and saying exactly what he said, he absolutely should be tried for treason, as well as incitement to riot or harm American ciitizens, as DK has pointed out.

His use of the "rape" metaphor can be proven in court to be a term that provokes a specific - desired - response from his intended audience. Since that response would be violence against, well, anyone, including Americans, Jews, and the British, his speech would be unprotected under US law. That sort of speech is already unprotected in certain cases, although nothing to do with treason. The fact that he calls the Jews foreigners just proves that he's wrongheaded and anti-semitic, not treasonous.

If Galloway was a US Congressman and said exactly the same things - elipses included - he would be removed from office by his own constiuents, and most likely prosecuted for treason because in that context his words would be a direct appeal to cause harm to the citizens of his own country, and an attempt to deliberately undermine national security. He wouldn't need to receive any compensation from an enemy, be an "agent" of any kind, or provide material comforts, etc.

Galloway has not yet committed treason, but there is one other issue that might yet get him in hot water. As a member of Her Majesty's Government, he directly calls for violence against the US. Since the US is a strategic ally of the UK, and therfore the national security of the two countries are intertwined or dependant upon one another, would that make Galloway's remarks treasonous in the UK?

Perhaps Prof. Volokh, or other members of the Conspiracy, would care to consider a situation in which an American citizen (never mind a US Congressman for goodness sakes), makes direct calls for - practically orders - violence against British soldiers, or another ally of the US in a time of war, or some other situation in which said acts of violence against an ally directly affects US national security.
8.18.2005 5:09pm
htom (mail):
I don't think that speech, alone, as detestable as some of it has been, constitutes an "overt act". There's a part of my gut that says inciting treason is the same as committing treason, but my head says otherwise.
8.18.2005 5:10pm
Carl Levin (mail):
I think Eric's post hits closest to the mark here. Although I actually lean more towards option 2 here (which some may see as quite severe), this choice is somewhat mitigated by the fact that I believe the real crux of the debate centers around the definition of "aid."

While Galloway's speech is reprehensible, and I find his membership in Parliament an unfortunate tragedy, I think it extremely difficult to argue that speech of almost any sort rises to the level of treasonous aid. Perhaps if he gave instructions to al Qaeda on likely bombing targets (and had reason to know which were more vulnerable - simply saying that someone should blow up, say, the Capitol building would not rise to that level); but other than that, I feel that treason should be reserved for the transmission of material, non-public information, or similar items.
8.18.2005 5:17pm
Goober (mail):
Professor Volokh: As suggested, my beef isn't with the American system of law. At least, not after Brandenberg and Times v. Sullivan. Can you think of a more central case of "core political speech" than speech explicitly discouraging or denigrating government action? Alternatively, wouldn't the definition of treason you contemplate---by prohibiting speech designed to undercut popular support for the war but permitting speech intended to prop it up---be a clear viewpoint discrimination? I may be out of a mainstream of American law, but on this question at least, it's not a mainstream of the last forty years. The example you cited, even:

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.

Can you imagine a message with that intent, no matter how clearly expressed, being punishable under current doctrine? "America should not go to war; it will lead to thousands of dead GIs. It's unjustified; it's immoral; it's illegal; it amounts to murder. The President is a war criminal." Which of these have you not heard in the last four years? And which of them could be punished, no matter to whom they were broadcast?

I don't see any way to explain this sort of reasoning---that treason is giving "aid" to the "enemy", and "aid" means this &c. &c., and therefore speech, with the consequence of depressing morale and encouraging enemy troops, &c. &c.---other than 19th century formalism. Practically speaking, what can punishable "treason" mean? Certainly not the expression of one's opinion, no matter how persuasive to the insurgents, Iraqi civilians, our troops or the Republican National Committee, that the war is unjust and the resistance justified, &c. &c. Even if the argument is so compelling that it drives desertions by the thousands, core political speech is simply protected (indeed, since at least Holmes, the Court has recognized that an idea's persuasiveness is no strike against it). That much can't be denied. Could there be speech that functions as treason? Sure---disclosing troop movements, &c. &c. But it must be speech that functions as an action, not speech qua speech.

(I'd also add that "enemy" is a curious term. Does it mean only those nations upon whom war has been declared by Congress? Any nation with adverse military interests to the U.S.? If so, AIPAC was in a lot of trouble during the U.S.S. Liberty episode, if we're going to accept that treason is merely advancing the interests of the other nation.)
8.18.2005 5:21pm
Matt Barr (mail) (www):
Thing is, the Rosenbergs were convicted of conspiracy to commit espionage, not treason.

That's a thing, but not the thing!

On appeal they argued that they had really been convicted of treason but that the court hadn't instructed the jury that the government had to produce two witnesses to the same overt act, and, in case that didn't work, that since the Soviet Union was not an "enemy" in the sense of a traditional state of war existing they shouldn't have been sentenced to death because their crime was similar to treason but of a clearly lesser quality.

So, I believe they'd've been big fans of the defense suggested earlier. They tried to use it on appeal.
8.18.2005 5:25pm
Goober (mail):
Steve,

Perhaps you're right. But I think there's a difference between just asking a question, and asking a question that entails a necessary logical antecedent that is factually incorrect. (As I've tried to explain, the notion that anything that boosts the enemy's spirits or depresses American ardor for war could qualify as "aiding" the enemy is patent nonsense.) And even with respect to the latter type of question, there's a difference between asking it for pedagogical purposes ("spot the b.s. assumption" was our national sport in law school), and just doing it to beg the question.

I too had an excrutiating discussion about rape in crim law. But I don't think Professor Volokh is merely asking questions discordant with our visions of the world the way we wish it were; I think he's playing fast and loose with his definitions. But you're probably right; I hadn't had lunch yet.
8.18.2005 5:26pm
Jam (mail):
Well stated Goober.

When Clinton send the military into Kosovo many of us condemned the action as unconstitutional and that POTUS ought ot be impeached and removed from office.

It is really scary that people are throwing the traitor charge around knowing that treason could be punished by death.
8.18.2005 5:27pm
David M. Nieporent (www):
Can you think of a more central case of "core political speech" than speech explicitly discouraging or denigrating government action?

How about speech advocating that one vote for or against a candidate for office, or speech praising or criticizing said candidate without so advocating?


Anyway, Goober, you seem to be making the same mistake that those on the right who scream treason all the time do: you're ignoring the "adhering to the enemy" requirement. Telling people that the invasion of Europe is a bad idea because lots of people will die shouldn't be treason; being paid (where "paid" includes non-monetary compensation) by Germany to tell people that the invasion of Europe is a bad idea because lots of people will die should be.
8.18.2005 5:40pm
Joshua (mail):
Eugene Volokh's subject asks when speech alone crosses the line into treason. We should stick to that and not venture into treason in general.

OK, fair enough. It just seems to me that if there is indeed no motivation to prosecute treason in the first place, then the legal relationship between speech and treason will never be tested, much less resolved. Not to mention that, for all intents and purposes, rule #6 from Mr. Volokh's post is the inevitable de facto outcome of such circumstances.

Actually, there is a fairly simple argument for #6 as a matter of constitutional law as well. An amendment to the Constitution, by its very nature, is meant to supersede the original document, or a previous amendment, in the event of a conflict between the two. (Otherwise it wouldn't be an amendment.) Even if one concedes that enemy-aiding speech alone could qualify as treason under its constitutional definition, the First Amendment contains no exception with respect to treasonous speech - therefore, the First Amendment trumps the treason provisions in the original document in all cases.
8.18.2005 5:47pm
Goober (mail):
Yeah, I thought about rephrasing, but I didn't see the value in adding "notwithstanding that some speech may be equally political." Curious, though, that some may think of the paradigm of political speech as running only up to election day---I suspect the Framers had a different understanding and had in mind the criticism of one's representatives once they did get there. Only one-half of one branch was even guaranteed to be chosen by the people at the Founding, but all were subject to their criticism.

Second: Excellent point, which I shall unfairly deride as more or less tomay-to / tomah-to. My own analysis imports from the "adhering" requirement into the definition of "aid and comfort." What my definition lacks in complete intellectual honesty it makes up for in a certain analytical inelgance. But I think we are using the same concepts under different labels.

I hesitate a little bit with the payment requirement. Do you mean that one's motivation (i.e., payment) is critical, or some contractual agency of the foreign government? I see the appeal, but I'm not sure.
8.18.2005 5:54pm
Tedd McHenry (mail):
I'm inclined toward the approach suggested by a few previous posters that all speech -- per se -- be protected, but actions not. So, for example, speaking out in support of the enemy would be protected, but being paid by the enemy to do so would not, not because of the speech but because of the action of receiving remuneration.

Having said that, though, I should also say that what I found most disturbing about Galloway's speech (aside from the distasteful metaphor) was that it seemed intended to drum up support for Britain's enemies from third parties. This is a gut-level reaction, for which I have no intellectual argument at this point, but I would have found it less offensive if Galloway had been encouraging Britons to join the enemy, instead. I think I'm happy to protect all speech within a given nation (on the grounds that debate and dialogue are critical to democracy), but not so comfortable protecting speech that's directed at enemies or potential enemies outside the nation.
8.18.2005 5:54pm
von (mail) (www):
Tom:

It may be that my initial reaction is based on the common law variant of conspiracy that's prevelant in the state where I practice, wherein conspiracy is not an independent offense but rather a means for expanding liability for an underlying offense. I'd have to think a bit more as to whether other variations of conspiracy law, wherein conspiracy can be an independent offense (e.g., a RICO conspiracy claim).
8.18.2005 6:04pm
Splunge (mail):
Think about this: if Galloway were not British but instead an Arab imam in Jordan, would England send 007 in to snuff him? I'd say not. That is, the harm he does rises to the level of national concern mostly because he is a citizen (and an MP) of England.

Hence I would say we're better imagining two separate categories of offenders, viz.:

(1) "Real" traitors. Those who for example broadcast troop movements or sell atomic secrets to our enemies. Their speech and action must be circumscribed, wherever they are. If they were foreign citizens in foreign lands we would assassinate them. These should be imprisoned, or preferably killed.

(2) Merely disloyal citizens. These are people like Galloway, or Fonda during the Vietnam War. They merely cross the line from loyal opposition to disloyalty (and where that line lies is for a jury to decide). If they were foreign citizens, we would merely deny them entry to the country, or deport them if they were already here. We would not go after them elsewhere in the world. These people should simply be deprived of their citizenship and expelled.

Does it bother me that the existence of possibility (2) means some people in heated political contest might have their speech a little "chilled"? That they might have to wrap their criticism (say) of the President with enough caution and affirmations of loyalty to the country that no reasonable jury of Americans would get the urge to send them on a one-way flight to Amman? Nope. Not one little bit.

We expect would-be immigrants to demonstrate a fair amount of loyalty to the country they want to join. Me, I'd ask the same of people born here, so that if either category of person was sufficiently disloyal in action or speech as to irredeemably piss of the rest of us, then so long and don't let the door hit your ass on the way out.
8.18.2005 6:13pm
Eric Spiegelman (mail) (www):
I say it's only treason if there's a real threat that the seditious speech or act will meet with some measure of success. There are plenty of seditious, but unprosecuted, homeless guys in my neighborhood.

How do you judge that measure of success? I seem to remember some legal line where, if it is crossed, "speech" becomes an "act." If it's an act, then treasonous it is.
8.18.2005 6:22pm
Brett (mail):
The consensus here seems to be that almost no speech is treason, and the definition of treasonous speech is so hemmed in with legalistic criteria that treasonous speech is non-existent.

Actual traitors must be breathing freely.
8.18.2005 6:24pm
Craig Oren (mail):
I'm not claiming to be an expert in free speech law, but it seems to me that, to convict Galloway of treason, you'd have to show that he was inciting an immediate act. He seems clearly not to be doing so. I can't imagine any prosecutor trying even to bring the case to a grand jury.

As for the Rosenbergs, as I understand it, the law authorized the death penalty only for a wartime conspiracy to commit espionage. No problem, said the government; the conspiracy occurred during the Second World War. Wait a minute!, cried the Rosenbergs, "Russia was our ally, not our enemy, in the Second World War!" No problem, said the courts, wartime is wartime.
8.18.2005 6:29pm
Stephen Aslett (mail):
Prof Volokh,

How about the following test?

A person is guilty of treasonous speech when he or she:

1) Intentionally incites violence against American soldiers, their support personnel (including military contractors), intelligence officers, or military or civilian leadership; or
2) Intentionally divulges information that he or she knows or should know is likely to result in death or substantial bodily harm to American soldiers, their support personnel (including military contractors), or military or civilian leadership.

I think this hypothetical statute has several advantages:

1) It allows for dissent and civil disobedience. One can still praise the enemy, hope out loud that America will lose a war, exhort people not to join the army or to ignore a draft, criticize the President's motives for going to war, protest in the streets, urge withdrawal from a conflict, etc. It does not allow one to incite violence against those prosecuting a war or securing American national security interests or reveal secrets that could harm such people.

2) It does not take into account the speaker's intentions toward the enemy. It shouldn't matter if a speaker intends to help the enemy through speech, wants monetary gain, or is simply a miscreant who wants to make trouble or gain notoriety. If the speech crosses the line from intelligent criticism/mouthing off to causing harm through inciting violence or intentionally revealing information that could result in violence to American troops, it should be treason. What makes treason nasty is not the intent of the treasonous person, but the harm that can result from treason.

Really, iss a traitor any less of a traitor if he doesn't care which side wins, but sells military plans to a spy for cash? Or if the speaker loves America in his heart of hearts but, in order to get back being fired by his CIA chief, tells a terrorist the chief's confidential name and address?

3) It's objective. Either you incite violence or you don't. Either you divulge information that is likely to lead to death or substantial bodily harm to these classes of people or you don't. In fact, the only reason I even put intent into the statute was to guard against the situations in which (a) a person is makes treasonous speech while intoxicated, under duress, etc. and (b) a careless person negligently divulges sensitive information.

4) The audience is irrelevant. Why should it matter if you're speaking to domestic or foreign enemies?

4) War is not a prerequisite for treasonous speech. One can aid the enemy in peacetime just as in wartime.

Note that this statute would protect both Gillars' and Galloway's speech. All they really did was bluster. While trying to lower morale, encouraging desertion, and speaking ill of American troops isn't a good thing, the bar for treason should be a little higher than that. Prison should be a place for people whose actions could have or did harm others, not for blathering idiots. Contempt is good enough for them.

I'm sure this statute could be better written. (One thing I noticed is that Senator, congressman, private, or army cook's spouse who orders a murder of the other would be guilty of treason.) Still, I think that may be overbroad in a good way.

Let me know what you think.
8.18.2005 6:31pm
Craig Oren (mail):
I should add, for the sake of anyone who may not know, that Sykes-Picot was a 1916 agreement between Britain and France on how they would divide the Ottoman Empire's Arab possessions in the (not-so-certain!) event that Britain and France won the war. (Sykes,by the way, was a British Foreign office official who believed in *both* Arab nationalism *and* Zionism.) It's a little hard to see advocacy of an illegal act in the denunciation of the implementation of an agreement reached almost ninety years b efore.
8.18.2005 6:34pm
Ivan (mail) (www):
In order for speech to "aid the enemy," there must be an enemy. Since this is an undeclared war, there is no enemy, at least not in constitutional terms. If you're going to follow the Constitution, you have to follow it all the way. You can't pick and choose which parts to follow.
8.18.2005 6:51pm
Stephen Aslett (mail):
Oh, I forgot yet another advantage:

6) The statute doesn't use the word "enemy" as part of the definition of treason. It not only avoids debates about who the "enemy" is or whether a state of war is required to have "enemies," it gets to what I think is the true harm of treason. Treason isn't so bad because it helps an enemy; it's bad because it hurts one's country's national security interests and (indirectly) one's fellow citizens. If aiding the enemy were what we're really concerned about with treason, then shouldn't a requirement for treason be that one actually helped the enemy? I think when we get down to it, it's the betrayal rather than the aiding that enrages us.

Here's an example. People despise Benedict Arnold for his attempt to hand over West Point to the British during the revolutionary war. Does it change anyone's opinion that:

(a) The documents Benedict Arnold handed over didn't actually help the British.

(b) Benedict Arnold hoped his treachery would save lives by bringing a quick end to the war. (He justified himself by saying "love to my country actuates my present conduct, however it may appear inconsistent to the world, who very seldom judge right of any man's actions.")

(c) Benedict Arnold was paid for the plains to West Point.

While these pieces of information may make us feel relieved, pity, or contempt, does anyone think that a single one of these mitigates Arnold's act? It seems to me that we care less about whether Arnold's treason was helpful, whether his intentions were good, or whether he was paid, than the potential harm that could have come to those troops stationed at West Point.
8.18.2005 6:54pm
Goober (mail):
Mr. Aslett---

I think your proposal has a lot to commend it.
8.18.2005 6:56pm
AST (mail):
You forget that "it's an illegal war!" That pretty well justifies inciting a violent response, doesn't it?

There was an article by Geoffrey Stone titled "What You Can't Say Will Hurt You" in the NYTimes a few days ago. I sent the link to Prof. Volokh. It was couched as advice to Tony Blair about the measures he has proposed to deport and denaturalize those who incite terrorism or glorify it, and cites Felix Frankfurter and Learned Hand:
speech that extols political violence is often "coupled" with sharp "criticism of defects in our society." For that reason, Justice Frankfurter said, there is an important public interest "in granting freedom to speak their minds" even to those who advocate the use of force to bring about political change."
Learned Hand, the author says, argued that
political or religious agitation, by the very "passions it arouses," may "stimulate men to the violation of law." But to equate such agitation with express incitement to violent action, he insisted, is to disregard an elemental "safeguard of free government."
Galloway's statement, I would argue, is like Lord Haw-haw in that he gets a lot of money, some from the Oil for Food bribery by Saddam, to promote Arab anger. You can't really talk about a "reasonable man standard" to determine whether these remarks are likely to cause violence, because an awful lot of Arabs are not reasonable by Western standards. Stephen Vincent was murdered in Iraq in an "honor killing" because he had announced that he would marry his female translator. That illustrates how Arab culture would respond to the rape charge. I think Galloway is too intelligent not to know how inflammatory it could be.

I tend to agree with Brett, that under current standards, Treason is a dead letter under our Constitution, not because it was intended that way by the founders, but because we have given the Bill of Rights preeminence over everything else, including the Preamble statement that, among others, the purpose of the Constitution is to "ensure domestic tranquility."

The rash language of abortion opponents should not make them responsible for murders of doctors who perform abortions, but I don't think the same can be said about statements like Galloway's on Arab television. Nor do I think that calls to Jihad by clerics in the U.S. and London should be protected, because we know now what they mean to many Muslims. They are calls for the violent overthrow of the Constitution and democratic government in this country. Michael Moore's speech is protected, but he's not an Imam.
8.18.2005 6:59pm
AST (mail):
Steve Chapman had a piece at RCP a week ago criticizing Blair.

Does deportation or denaturalization for inciting or glorifying terrorism violate the Constitution?
8.18.2005 7:07pm
JasoninJersey (mail):
I think there may be a distinction between different kinds of speech. There is speech directed towards morale, which should generally be given wide latitude, but there is other kinds of speech. Giving away military secrets should not be protected. Deliberating giving American troops misinformation for the purpose of leading them into an ambush is not protected.

My only second thought here is about morale of American troops against an existential threat. As a "gut reaction" matter, I would not be too keen on protecting speech that told troops to put their weapons down and surrender if the enemy was marching through New York.

I'm not sure this is the most thought-out post, but I hope it advances the discussion a little.
8.18.2005 7:07pm
Tom Holsinger (mail):
von,

Conspiracy is not a civil tort, but it is a statutory crime by itself, as well as being a means of creating group liability under other criminal statutes, such as extortion (18 USC 1951), RICO (18 USC 1961, et seq.), etc. See 18 USC 371, 18 USC 372 and 18 USC 373 for the separate federal criminal conspiracy offenses. Conspiracy is also a separate criminal offense in all states, AFAIK - the California statute is Penal Code section 182.

In the context of treason, I contend that a body of law already exists, concerning criminal conspiracy, wherein the accused's intent alone (without acts by the accused provided the co-conspirators commmitted overt acts in furtherance of the conspiracy) can create criminal liability by the accused if the prosecution proves that the accused "agreed to act in concert" with others to commit acts constituting treason.

I believe that the criminal conspiracy rules for determining criminal liability by an accused who committed NO overt acts aka otherwise criminal offenses himself should be considered for use in determing whether speech alone by an accused traitor constitutes treason under Eugene's theory No. 4 - "coordinating his speech with the" enemy.

Analysis might show that this won't fly. But it's worth investigating.
8.18.2005 7:10pm
von (mail) (www):
Tom:

Conspiracy is not a civil tort, but it is a statutory crime by itself, as well as being a means of creating group liability under other criminal statutes, such as extortion (18 USC 1951), RICO (18 USC 1961, et seq.), etc.

Yes, obviously, that was exactly my point (though perhaps it was expressed somewhat inelegantly, and thus you missed it). My initial reaction to conspiracy was based on thinking about it in the context of common law (civil) claim. (I'm a civil, not criminal, litigator.) When you pointed out that I needed to broaden my horizons and consider conspiracy in the criminal context, I agreed, and said I'd think about it further. Which is what I'm doing: thinking about it further. (This is not the same as agreeing that it's a viable way to go.)
8.18.2005 7:31pm
Tom Holsinger (mail):
von,

I'm a civil litigator too, though I learned the distinctions between civil &criminal conspiracy in my SEC Enforcement days when trying to hand off cases to the U.S. Attorney and state &local prosecutors.

A truly necessary continuing education course is "What Every Civil Litigator Needs To Know About Criminal Law". A shining example of that occurred during a city planning commission meeting when, after the commission indicated it would deny my client's development, I conned the commissioners into committing a predicate RICO offense (extortion) against my client, with the video cameras rolling and the clueless City Attorney looking on. They didn't realize what I had done until the RICO complaint was filed.
8.18.2005 8:02pm
Eugene Volokh (www):
Remember Gillars! Craig Oren writes: "I'm not claiming to be an expert in free speech law, but it seems to me that, to convict Galloway of treason, you'd have to show that he was inciting an immediate act. He seems clearly not to be doing so. I can't imagine any prosecutor trying even to bring the case to a grand jury." Would that equally apply to Gillars, and, if so, doesn't that mean that she had a constitutional right to broadcast her propaganda? Craig, do you think that this is indeed right?
8.18.2005 8:25pm
von (mail) (www):
A shining example of that occurred during a city planning commission meeting when, after the commission indicated it would deny my client's development, I conned the commissioners into committing a predicate RICO offense (extortion) against my client, with the video cameras rolling and the clueless City Attorney looking on. They didn't realize what I had done until the RICO complaint was filed.

Well, there has to be more to that story, since a single predicate act does not a RICO claim make. (It also sounds like you'd have some serious RICO enterprise problems, but that's a different issue.)
8.18.2005 8:34pm
Tom Holsinger (mail):
von,

California law requires developers to make a formal protest of conditions imposed on approval of proposed developments, at the time the exaction is imposed. So when planning commissioners require that the protests be withdrawn as a condition of approving the development, they commit predicate RICO acts of extortion. I represented several developers protesting the same exaction applied to different projects.

The planning commission chairman said he'd vote against the project under consideration if the protest wasn't withdrawn. The City Attorney sat there like a log at that, so I said, with the video cameras rolling, that I'd withdraw the protest if the other commissioners agreed with their chairman. They all said they did, so I withdrew that protest and sweetly inquired if they had similar requirements concerning the projects of my other clients.

They said they did, so I withdrew those other protests and asked if withdrawal of protests of development exactions would be a required condition for future development approvals. The City Attorney continued to just sit there. They said yes.

It was an interesting case.
8.18.2005 9:31pm
Mark (mail):
I'm surprised there's no mention here of the Ali Timimi case. In this case a muslim cleric in Virginia was convicted of soliciting treason (I don't know if this was the formal charge) because he told his followers after Sept. 11 that "the time had come for them to go abroad and join the mujaheddin engaged in violent jihad in Afghanistan." Apparently some of his followers then went to terrorist training camps abroad. The link to the WaPo article is here.

I think one crucial factor in a treason prosecution is that the person speaking should have some actual influence (or more stronger, be a link in a chain of command or hold actual authority over the country's enemies) to be considered a traitor. Rants by crazy people should not be prosecuted, but if someone has real status in the Arab world and they convince someone to strap on an explosive belt and their speech was deliberately tailored to get just that kind of response, then it seems outside the bounds of free speech protections. Timimi as a spritual figure arguably was an authority figure of some kind who knew what he said was liable to influence the behavior of his young followers. The same probably cannot be said for Galloway.
8.18.2005 9:48pm
Bill C (mail):
Treason is; to give aid or comfort to the enemy freely, full stop. Whether it is through intent or by carelessly leaving stores of food and weapons about where the enemy might easily acquire them. The same could be said for leaving public argument and debate so open so as to be easily put to the enemies cause. It too is treason.
During times of war, one is necessarily less free. In 1939 there were Americans doing rallies for the Nazi party. They well may have caused money and recruits to be sent to Germany. I don't think they were so active in 1944. During times of war one should be expected to be more cautious of what one does or says. IT is a reasonable expectation when so many lives hang in the balance, and the well being of the national good is at stake.
A simple analogy is, if ones spouse is upset with the meal served at a restaurant, it is reasonable to try to calm and comfort one's spouse and dissuade them from throwing the food at the waiter. If however you were to tell the waiter, or your spouse while in the presence of the waiter, that your spouse is just impossible and they should just shut up and eat, you'll be seeing an divorce attorney soon after. Ask them then if that would be treason or reasoned debate.
8.18.2005 10:27pm
ReaderY:
In addition to giving aid and comfort, there is also the requirement of "adhering to" ones country's enemies. Might this requirement distinguish between a person who acted in collaboration or contact with the enemy and a person who didn't?

Gillars actually worked for an arm of the German Reich, which appear to be a satisfaction of the "adhering" requirement. I doubt renumeration or formal membership would be necessary to meet the requirement, but it suggests that something more is needed than merely a speech opposing the war. It also suggests that the same speech might be treasonous if made by a person in contact with the enemy, but not if made by a person who isn't.
8.18.2005 11:23pm
cac (mail):
This may well have run its course but a couple of minor (and probably irrelevant comments):
- Galloway was speaking as an MP and therefore under Parliamentary privelege could not be prosecuted (although the House could resolve to lift this); and
- Lord Haw Haw's treason conviction was pretty dodgy as it was based on his holding a British passport obtained under false pretences so it wasn't at all clear that he really owned any allegiance that he was being treasonous to.
8.19.2005 1:05am
edthomas:
Ed, UK

Hi- I sympathise with the talk of treason, but I think that the legal mindset has moved on so far in the UK that the only way to get Galloway would be on charges of incitement to racial hate. After all, he uses the incendiary term 'foreigners' alongside the even worse one of 'rape', having sexualised the whole discourse- this in full knowledge of the culture he is addressing. For those worried about ellipses, all the above was from one interview.

The thing is that Galloway's a bully. Accuse him of racism and he'll respond he has had a Palestinian wife and represents thousands of people darker than the average British asian. He knows the lie of the land- even if he ends up sounding absurd to most of us. Of course he's guilty of treason, if our national interest means anything at all, but we've tended to complexify this matter deliberately using various more nuanced laws. I think there's a cast iron legal case for incitement to racial hatred, but on such p.c. agendas has Galloway raised his career. That's why you'd need an iron will and total unflappability to nail him in court- an encounter Galloway would relish until he lost.
8.19.2005 5:36am
D Dubbya (mail):
Outrageous speech in British parliamentarians has something of a tradition. It brought votes to commoners, curtailed the powers of the monarch, outlawed the trade in slaves and enfranchised women.

All of these reforms took long, painful and costly courses from sedition to law.

Any idea of limiting political debate would have the effect of making future reforms even more dificult. And the turmoil that the world at large is presently enjoying has at least some roots in large groups of people having their voices of diisent stifled.

Meanwhile, back at the plot, how US law and custom of treason might apply to part of a speech by a British parliamentarian seems a rather hollow and purely theorectical exercise in rhetoric.

Is there a demonstrative purpose, perhaps? A purpose of leading debate towards a climate conducive to extended censorship? Surely, with media as tame as the networks and CNN, there's no possible need.
8.19.2005 6:33am
Penta:
CAC:

1. Unless he was speaking on the floor of the House, he has no Parliamentary Privilege.

2. Yes, Lord Haw-Haw's conviction for treason was fairly dodgy, but...He was the dope that claimed British citizenship, and consciously too. Not like he gained it through birth. The court probably figured that he gave himself the noose to hang himself with, and it was what the public really wanted, so...We don't generally protect people from themselves.

D Dubya:

Treason law in the US is so rarely discussed that brushing off the topic and chewing on it is a good idea occasionally, no matter the situation.
8.19.2005 7:13am
Andy (mail) (www):
I think your argument assumes a well defined enemy. In previous cases that was clear, but in this case it's not so clear. Who is the enemy? Terrorists? But Gallloway seems to be addressing his points to Arab governments who are not presently "at war" with either Britain or the USA. If they WERE at war, then clearly this would be treason under US law. But can you commit treason if "no war is committed?" Of course, the terrorists are among his listeners. That's common sense, but proving that he's really intending to address the terrorists doesn't seem like a clear case at all to me.
8.19.2005 7:15am
jallgor (mail):
Mr. Aslett,
Just to set the historical record straight Arnold did not just hand over the plans for West Point he also purposely let the defenses at West Point deteriorate. Also, the only reason the plans did not help the British is because the whole plot was discovered in time. The more interesting question with Arnold is that, no matter what he did, he was either considered a traitor by the British (as with all those fighting on the American side) or he was a traitor to the Americans. To the victor's belong the traitors, so to speak.
8.19.2005 10:14am
cac (mail):
Penta:

1) I assumed he was but of course you're right, if it was outside the House no protection at all
2) I suppose the point I was making was along the lines of the discussion above about what is wrong with treason as opposed to conspiracy or any other potential offences and there seems to be some sort of general view that the wrongness is going against your country's interests rather than any particular damage. In that sense, Lord Haw Haw didn't really seem to qualify although legally they had him bang to rights of course.
8.19.2005 10:20am
von (mail) (www):
It was an interesting case.

Sounds like it!
8.19.2005 11:36am
D Dubbya (mail):
Parliamentary privilege; Only applies to what is said in the house (Galloway was in the middle East when he made the speech), and only offers protection from the laws covering personal defamation, slander etc. Treasonable utterances in the House would still be treason.

Penta Fiar enough, but the argument here is surely predicated on too many hypotheticals to shed much light on the application of the law of treason. By the convolution, it looks to be more about finding ways to prevent people we don't like from saying things that we despise.

As with much of Galloway's output, the remarks referred to are craven and vile, but the grace of democracy is that it exists to benefit the whole range of society, and that neccessarily includes a number of craven and vile individuals. No? Defending the freedom to say things we support isn't a worthy test, is it?

edthomas: Nailing Galloway in court "an encounter Galloway would relish until he lost." - so far he's beaten all comers. Good luck.
8.19.2005 12:19pm
Harold (mail):
"but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime".

I don't find this objction, to #2 above, to be persuasive. If we were to negate any rule or law that could be subject to mistakes of prosecutors or juries, we would have no rules or laws, since it is always possible that prosecutors or juries can make mistakes, especially about intentions. In criminal law intentions are very important, and prosecutors and juries do the best they can to understand them.
8.19.2005 12:42pm
Denis Cooper (mail):
According to The Oxford Companion to Law (ISBN 0-19-866110-X), cited on http://www.truth-and-justice.info/2005/treason.html

"The essence of treason is violation of the duty of allegiance which is owed to the sovereign and is due by all British subjects who are citizens of the U.K. and colonies, wherever they are, and by aliens under the protection of the Crown, so long as within the realm or still within its protection though having left the realm."

Unlike Lord Haw-Haw, there's no doubt at all that Galloway owes this duty of allegiance. Firstly, he is a British citizen, and secondly as an MP he also took a specific Oath of Allegiance: "I .... swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors, according to law. So help me God."

So the questions would be:

1. Has he failed in his duty of allegiance?
2. If so, was his failure sufficiently serious to warrant prosecution?
3. If so, would there be a reasonable chance of obtaining a conviction?
4. Even if it is possible to proceed against him with a good prospect of success, would it be in the public interest to do so?

Personally I would say that charges could and should be brought against him, but I doubt that the Director of Public Prosecutions will do so.
8.19.2005 12:59pm
Jam (mail):
I researched, a while back, the history of loyalty oaths in post 1776 Revolution. I was no able to find such things until Lincoln.

Oaths are something serfs give their lord.

Are we serfs or are we free citizens?

How does this square with the Declaration of Independence? Where it is stated that we have a right to change or abolish a government that violates our rights?
8.19.2005 1:29pm
Goober (mail):
You forget that "it's an illegal war!" That pretty well justifies inciting a violent response, doesn't it?

(This from the same post that denied that "abortion is murder!" could put one on the hook for inciting the killing of abortionists. Free speech for me, but not for thee, it appears.)

Treason is; to give aid or comfort to the enemy freely, full stop. Whether it is through intent or by carelessly leaving stores of food and weapons about where the enemy might easily acquire them. The same could be said for leaving public argument and debate so open so as to be easily put to the enemies cause. It too is treason.

I'll just point out that, whatever the mens rea for treason, it is most certainly not mere negligence, or "careless[ness]."

Professor Volokh: I hope this discussion clarifies the deep problem with allowing prosecutions for this kind of speech; how many of your readers who wrote in above do you think would convict based on speech they simply disagreed with, or somehow didn't like? And this tendency, apparently, only grows more threatening during wartime.

But on another note: I would really like to get your opinion on whether the Gillars case is still good law. Certainly First Amendment and Due Process jurisprudence has changed a lot since then; do you really think that the same standards would still be applied? Or to put it another way, Gillars may have had no constitutional right (witness the outcome), but that doesn't mean that a modern-day Gillars wouldn't.
8.19.2005 1:45pm
Trover (mail):
If Galloway were a U.S. congressman or senator, how would the Speech and Debate Clause apply?

[Senators and congressmen] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. U.S. Const. art. I, s. 6, cl. 1.


If his speech amounted to treason, he would apparently not be "privileged from Arrest." Could he be hauled off the debate floor? On the other hand, once he left the building, would he be immune from questioning for his statements on the floor, since the exception for treason in the first clause doesn't seem to apply to the second clause? This seems an odd result: arrest him in the Capitol or not at all.
8.19.2005 2:48pm
Robert Schwartz (mail):
devil's advocate: Galloway's anti-Semitism and distortion about Jerusalem is in his caracterization of it as one of "your beautiful daughters." He is denying that Jerusalem is a Jewish city. For 25 centuries we have recited Pslam 137 daily:

"If I forget thee, O Jerusalem, let my right hand forget her cunning. If I do not remember thee, let my tongue cleave to the roof of my mouth; if I prefer not Jerusalem above my chief joy."

And have prayed:

Return, Oh Lord, in mercy to Jerusalem, Your city, and dwell in it as You have promised. Rebuild it soon, in our day, as an eternal building, and speedily set up in it the throne of David. Blessed is the Lord, who rebuilds Jerusalem.
8.19.2005 3:04pm
MCO:
Trover-

I read the Speech and Debate clause as saying that one has absolute immunity from prosectution for treason (or any other crime or civil offense) for any words spoken on the House or Senate floor. However, if a Senator or Congressman had already committed treason, he could be arrested at or on his way to the Capitol.

-Mike
8.19.2005 4:37pm
hey (mail):
the thread seems to have grabbed the leftist lawyer section of the conspiracy's readers.

here are a few thoughts from a non-specialist and non-leftist: fetishistic adulation of the first amendment is useless in running society or conducting oneself, and is operatively misleading given the fact that the first amendment has been declared to have no effect, as restrictions on political speech within certain periods before an election campaign (BCFRA) were upheld by the rehnquist court. If regular political speech can be restricted by congress even in terms of utmost peace, congress has the full power to say that treasonous speech is whatever they want it to be.

firstly, duress should be no defense, just as I have been taught that it is not for murder, given that treason is an attempt to kill a country and likely conduct that kills or endangers large numbers of people. so tokyo rose should have hung, but recent governments are too soft headed towards traitors in general and traitorous women in particular (a british spy that gave nuclear secrets to the soviets was left alone because she was a lady, and recently died permanently unmolested. she was also a bitter-end marxist, which likely helped her with many british governments and civil servants).

secondly, it tends to be the vast majority of anti-treason positions come from the left (pace plaeo-con who is annoyed at us neos) since so much of the leftist project specifically entails or at leasts contemplates the overthrow of the current state. so people who commit treason or can see that they could likely committ treason will tend to be against expansive definitions for their own sake (you don't see this in the right wing broadly as it currently doesn't envision an overthrow of the state, but many rightist movements have and would likely take similar psotions to that of many current leftists).

thirdly, treason should be any conduct or speech that is intended to, was, or should have been expected to be beneficial to the enemy or inimical to the country. we need a more civil discourse and for people to actually argue the issues: should we go to war, stay at war, or not, rather than going to the "babykiller", "bushhitler", etc memes. this speech should be chilled, drastically. large numbers of people should rightly be facing treason trials, and be dealt with appropriately. saying that we shouldn't be going to war, is ok, but saying that it is right to kill us citizens and forces should be restricted, as should any actions interfering with recruiting and drafting of soldiers.

I know these are minority positions here, but they represent at the very least a very large share of the populace (or at least are dramatically closer than goober's views)
8.19.2005 7:57pm
D Dubbya (mail):
hey: a couple of points - "we need a more civil discourse," do you mean a civic discourse with wider participation, or that the character of discourse should be better mannered?

"saying that it is right to kill us citizens and forces should be restricted," - do you mean restricted, or do you mean prohibited? And, since you seemed enthusiastic for the death penalty earlier, aren't you advocating killing US citizens? Wouldn't arguing against recruiting and drafting tend towards interfering with recruiting and drafting? These sound like fuzzy tests you are proposing.

You seem to be saying that free speech is overrated, and anyway too precious to waste on people whose views you deplore, but you seem to want sanctions against "treasonous speech" defined as "whatever (congress) wants it to be."

Sounds a little like a route to mass executions.
8.19.2005 10:25pm
Gerry:
Well, I'm not sure whether all you lawyerly types are trying to validate all those awful lawyer jokes or what. Some of you even make some sort of sense. Some. Then we have the non-lawyer types, By which I mean D Dubbya, just above, who makes no sense at all.
But I thank Eugene Volokh for opening this admitedly dreadful topic. I don't know the exact Russki, Evgeny, but here you have big 'cohones'.
Sorry folks, anyone who gives 'aid and comfort' to this particular enemy, is toast. Yeh, it's war time, it's slammer time, or even execution time for our very own internal jihadists. Now I know that previous 100s of American citizens (perhaps even more during the last 80 odd years) have betrayed their country to enemies and have been given a pass to Marxist heaven, but this time it will work out to be different (maybe not soon though, just eventually). No lawyerly passes to the "John Abts" or the National Lawyers Guild guys and gals.
A whole lot of you need to rethink your priorities, not to mention your very lives. Volokh knows about the prices paid for being careless of liberty, he just doesn't talk about it much. Think Kolyma.
8.20.2005 4:47am
M. Scott Eiland (mail):
Another notorious case of "treason or not?" was, of course, Jane Fonda's little expedition to North Vietnam--where she made a rather notorious guest appearance in an NVA anti-aircraft gun and made several propaganda broadcasts with the blessing and assistance of the North Vietnamese government. Using Professor Volokh's candidate rules above, I'd venture that Hanoi Jane's conduct would qualify as unprotected speech if rules 2 or 4 were used, and a case could be made for #3 (assuming that giving someone a microphone and a radio station to spread one's favored ideas might constitute "compensation." I'd think much more highly of Tricky Dick if he had slapped the spoiled brat in handcuffs when she got off the plane back in the States and made her roll the dice on whether enough peaceniks would wind up on her jury for the treason charges to wind up hanging the jury.

A less obvious case is the fact that Fonda continued to spread North Vietnamese propaganda after her return to the States--claiming that the POWs who returned from North Vietnam were lying when they told their stories of being tortured by their captors (based on, of course, the propaganda she was fed by her hosts). Personally, I'd say that this would not rise to the level of treason--it undoubtedly hurt morale and thereby helped the enemy, but since she did it in her capacity as a private citizen and not as a designated propagandist, I'd tend to leave it in the category of "despicable, but not prosecutable."
8.20.2005 4:47am
Anonymous:
I don't know much of the law here, but think Mr. Aslett's point about the weakness of "helping the enemy" as a criterion is important. After all, isn't it plausible that speech could help the enemy and also the US? for example, let's imagine that the US wantonly invades, say, Britain, leading to a long, bloody, stupid war. In the middle of this war, I publicly say "we should give up on this invasion and go home." I freely admit that this is exactly what the British and their leaders want, even that it's the main goal of their war strategy. Maybe I'm even having my broadcasts and billboards paid for by some British citizens. Nevertheless, my advice might be perfectly sound; I might rightly think that the US's interests and those of her current enemy were not, understood rightly, in conflict.
Of course, that situation is very far-fetched, though it bears some relation to Professor Volokh's Vietnam War example. But I think it pretty well describes what people like Axis Sally always CLAIMED to be doing; preventing us from harming both the enemy and ourselves. Does the treason law in some way distinguish between merely helping the enemy, and harming the US? If I (in my British-war protestor persona) am on trial for treason, and all the jurors understand that I was right to oppose the war, are they nevertheless obliged to treat me the same as Axis Sally? (of course, I am assuming some very scrupulous jurors here; in fact, sympathy would probably make them find me innocent regardless of the law, and maybe their sympathy, and that of possible prosecutors, are enough of a safeguard.)
8.20.2005 5:05am
Jam (mail):
Does reciting the Declaration of Independence in public, and use it against the Central governments' usurpations of authorities, is treason?

http://www.yale.edu/lawweb/avalon/declare.htm

Declaration of Independence

(snip)

... that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

(snip)

We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.
8.20.2005 10:12am
M. Scott Eiland (mail):
Does reciting the Declaration of Independence in public, and use it against the Central governments' usurpations of authorities, is treason?

Not per se--Article V of the Constitution is specifically designed to let "the people" (through their elected representatives at the state or federal levels) "alter" or (in theory) "abolish" the government under the Constitution as it then exists. The Civil War pretty much made it clear that secession by a minority of the nation was not going to be tolerated, but the amendment process could certainly be used for that effect if a consensus could be reached.
8.20.2005 12:19pm
Olustee (mail):
The whole discussion centers around the assumption implicit in V's original post, namely, that the speech act in question is one which could be called "command to act" or "invitation to act."

But there are other speech acts that are possible where "speech {leads to} act" is not at issue. One clear example that would be treasonous is speech that is codified to deliver a covert message of military or political value to an enemy of the U. S. Here, the speech act would be called something like "transmission of information" where the "information" is something like what double-agents or spies deliver.

The intriguing thing about this latter example is that clearly falls under the notion of "aid to the enemy."

Closer to "speech which elicits action" would be speech that "communicates philosophical abstractions," where the content of the "abstractions" consists of classification of the world into "believers" and "infidels," and where this binary classification is used to exhort others to act within an already historically present military/political situation like the present one, where for some hearers of the speech (worshippers at a Wahabi mosque), that classification is ipso facto an "incitement to act," but where there is no overt rhetorical component in the speech that incites to act.

Much of Nazi propaganda about "Juden" founded on the Nazi pseudo-science of "racial hygiene" would fall under this kind of speech act. E.g. "Jews are by definition carriers of inferior blood," where--in the middle 1930s in Germany, e.g.--the explicit political push to exterminate Jews had not yet surfaced, but which could be reasonably read to be implicit in some such statement as that above.

I don't know how far to push this--I'm not a lawyer but an emeritus professor of English--but it seems to me that there would be case law that overlaps with some if not all the above.
8.20.2005 10:45pm
Jam (mail):
We, the States, retained the authority to leave the voluntary Union. The secession issue was settled by the bayonet. The Federal government has not been delegated the power to stop a State from leaving this voluntary Union. The war settled nothing except that might makes it stick.

Article 5, all it does is setup the process for amending the Constitution and how to handle a States' decision to split since the split would cause another State into the Union. It has nothing to say about a State leaving the Union. That is covered by the 9th and 10th - undelegated powers are retained by the States.
8.20.2005 10:55pm
Ryan Waxx (mail):

I don't think that speech, alone, as detestable as some of it has been, constitutes an "overt act". There's a part of my gut that says inciting treason is the same as committing treason, but my head says otherwise.



Speech is speech. It rises to action only when it flowers into "Go burn down the draft office---now!"


For those who think that words are not an 'action', may I remnd you that it is illegal to threaten the President's life, or even to say he should be killed?

How does that jibe with your views? Or would you rid us of that 'tyrrany', as well?
8.21.2005 11:23pm
Goober (mail):
Ryan Waxx---

I highly doubt anyone keeps coming around to this thread, but in case you're still curious:

It is of course to be conceded that my distinction between speech and action is very much reductive. Speech that counts as action is one thing, and speech that counts only as speech is another, but how to tell them apart? I confess I haven't got an easy answer. But I wasn't trying to provide one; it's sufficient for my argument that there is a distinction, without pinning down exactly where the distinction lies.

First note: Speech alone can constitute a crime. Threatening the president's life (actually, threatening anyone's life can constitute menacing, etc.), as you note; also making false statements by means of the interstate wires.

But you'll concede that none of these examples is satisfied by the mere expression of an opinion. That is, threatening the president is one thing; expressing the belief that we'd be a darn sight better off if the president were to die in office is quite another. Indeed, many twentieth-century free speech cases that spring to mind were concerned precisely with overbroad statutes prohibiting speech "counseling" illegal behavior that also would have included speech affirming the propriety of such illegal behavior.

So while I haven't yet defined where speech ends and action begins (nor am I brave enough to attempt to do so), surely the line stops a great deal before what we're talking about. Just as a logical matter, the fact that some speech is prohibited as a crime does not mean that any or all speech can be. But the fact that speech expressing an opinion, without actually counseling action, is constitutionally protected, does entail that such speech is not prohibited as a crime.

So I apologize for employing a linguistic device that I wrongly supposed was perfectly clear to everyone on this thread. To sum up, it jibes with our views perfectly well. And while it's cute to quote us as calling this sort of thing "tyranny," I remind you that we didn't use that word. And if we had, we certainly would have spelled it correctly.
8.22.2005 1:26pm
Goober (mail):
Let me just make one point: While what Nicholas de Genova said (the "million Mogadishus" line) was surely reprehensible and disgusting, his open wish for American soldiers to die wasn't alleged by anyone to constitute treason! Yet the comments above suggest that many of you think it ought to have. Am I wrong about this? I would deeply love to hear your thoughts.
8.22.2005 1:32pm
Rich Rostrom (mail):
In 1863, General Burnside arrested Ohio Democrat Clement Vallandigham for treason. Naturally Lincoln received many indignant protests. This was his answer: "Must I shoot a simple-minded soldier boy who deserts, while I may not touch a hair of the wily agitator who induces him to desert?" (But he released Vallandigham - into the Confederacy.)

Galloway is very wily. His rhetoric encourages young Arabs to take up arms against the U.S. (and Britain), so they have to be killed. Galloway, because he only talks, is apparently safe.

Unfortunately, there is no bright line answer. What should be the fate of a US media kingpin who gives headline treatment to an incendiary story of US atrocity that he knows is false? How do we distinguish between him and another media kingpin who runs a similar story because he thinks the misbehavior in question won't otherwise be stopped and is preventing US success in the war?
8.22.2005 9:46pm
Jam (mail):
Vallandigham called Lincoln's actions unconsitutional and voiced the historical/legal fact that the States had the retined authority to withdraw from the Union. Yes, such treasonous remarks!

Imagine, espousing the principles of the War of 1776 and the Kentucky and Virgina Resolutions.

Let's hang 'em.

Sic Semper Tyrannis
8.23.2005 9:51am