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When Is Anti-War Speech Harmful to the War Effort:

I'd like to focus a bit on the broader question of when speech during wartime is harmful to the war effort -- not necessarily when it's immoral, but only when it harms the war effort. To do this, let's first shift the discussion from the war on Iraq to World War II.

What speech (if any) by Americans during World War II do you think would have been harmful to the war effort, even if it weren't deliberately aimed at helping the Nazis win? If you think some such speech would have been harmful to the war effort then, but are skeptical about similar claims related to speech related to the war in Iraq now (as many commenters on this thread seem to be), why do you think there's a difference? (I should stress that I don't think that all antiwar speech is harmful to the war effort, and -- as I noted below -- that I don't think that even antiwar speech that harms the war effort is necessarily immoral. I do think, though, that a considerable amount of such antiwar speech is indeed harmful, and that people sometimes underestimate these harms.)

asdf (mail):
Valid criticism is much more harmful to the war effort than invalid criticism.

The difficulty in comparing anti-war speech about WW2 with anti-war speech about Iraq is that (IMO) the criticisms that apply to Iraq don't apply to WW2. We could imagine an alternate universe in which the parallels would be stronger, perhaps, but that doesn't help.
12.8.2005 9:33pm
Shelby (mail):
It seems to me that clearly harmful speech consists of (1) anything that actively helps the enemy (troop movements, shipping routes, the state of resources, etc.), (2) anything that reduces military morale (denunciations, defeatism, desires for failure, etc.), and (3) anything that reduces necessary concomitants for military victory (civilian support for the war, allies' support, industrial producivity, etc.)

Speech can be any of these things without the speaker deliberately seeking military defeat. In fact, some speech might be helpful overall (or helpful in intent) but harmful in some aspects (or harmful in unintended effect). Some speech may also be entirely legitimate but militarily harmful, e.g. fairminded criticism of one's pro-military political opponents.

For example, speech during WWII revealing the need to obtain rubber from new sources, and how those sources were being tapped, would have been helpful to the U.S.'s opponents by facilitating interruption of the new supply -- but it might occur as a side-effect of national debate over military priorities. Rhetoric calling for the U.S. to sit out the war was probably helpful to enemy morale and harmful to U.S. recruitment efforts and to civilian committment to victory. Some such rhetoric may be legitimate, but still eschewed by patriots who value U.S. success over political point-scoring.

Those are my initial thoughts, anyway. Is that about what you're looking for, Eugene, or did you want something more specific?
12.8.2005 9:37pm
Anderson (mail) (www):
The Chicago Tribune's publication of secret war plans comes to mind, and I think they also published something suggesting that we'd broken the Japanese codes.

The latter, at least, is a good example.

Tokyo Rose &Axis Sally &Lord Haw-Haw, IIRC, were splendid examples of pro-enemy speech that made no impression whatsoever on our troops. Not to forget Ezra Pound on fascist radio, railing against Jewish usurers. Those are examples of how what seems "objectively harmful" may be no such thing.

Then there's active incitement to resist the draft (as opposed to, say, an op-ed column on the subject). I think that's probably a good example.

Speeches about what a fine fellow Hitler is, &how it's a pity we're not fighting the Soviets alongside his troops, would surely be inspirational to the enemy to some degree. But how much, really? Enough to justify punishing the speaker? (And is really that much more unthinkable to (1) join the Nazis in fighting the Commies than to (2) join the Commies in fighting the Nazis?)

So I think the secret-codes and draft-defying examples are the only ones that plausibly fit.
12.8.2005 10:15pm
Rob (www):
When Is Anti-War Speech Harmful to the War Effort:

The purpose of anti-war speech is to harm the effort, not to help it, so it seems like a no-brainer. It's successful when it achieves its intended purpose. (Perhaps I misunderstood?)


I disagree with asdf's claim that valid criticism is more damaging than invalid criticism. This assumes that the impact of a statement is dependent only on the validity of the statement. But if we look at the history of sophistry, rhetoric, and plain old dishonesty, it's clear that this isn't true. So why would it be uniquely true in application to war?

Offhand, here are a few criteria for significant harm:
  • it must reach a widespread audience
  • it must be believed (or at least not disbelieved) by a large part of the audience
  • and it must at least cause either some new people to oppose the war or cause former supporters to stop supporting the war.
Of course, that ignores statements that reveal classified troop movements, tactics and strategy, etc.


There's one form of anti-war speech that's difficult to predict by effect: criticism of incompetency in the management and conduct of the war. Such criticism could harm the war effort, or it could be used to improve the war effort.

But if this criticism was employed by the anti-war movement it's logical to conclude that their goal is to harm the war effort, not to help it. (Perhaps by implying that the leader shouldn't be thought able to conduct a war, but that's just a guess.)
12.8.2005 10:31pm
JohnAnnArbor:
Arguing that fascism is just another form of government, just like democracy, and that Germany never attacked us directoy so we shouldn't attack them.
12.8.2005 10:33pm
JohnAnnArbor:
A better one: arguing that widespread corruption was draining off the productivity gains of the war years, and that there's no point to working hard on the war effort because it's going to corrupt corporation, not to fight the enemy.

(Doubtless there were very real cases of WWII corruption, but allowing isolated cases to be made into a "meme" of rampant corruption, poisoning worker morale, would not be wise.)
12.8.2005 10:37pm
Dave Hardy (mail) (www):
The idea of legitimate criticism of corruption being moral, and making it into a pervasive theme (I don't do memes) seems valid.

As I recall, there was in WWII a Truman Commission (HST then being a congressman) which rooted into corruption and inefficiency. The theme was not that such was pervasive, but rather that it needed to be rooted out in order to advance the war effort. Likewise during the Civil War there were on the northern side much criticism of the sleezy makers of "shoddy" equipment -- and the southern side could probably have benefited the same critique.

A standard tool of propagandists, at least since WWI, has on the other hand been to argue that opposing troops are the tools of war profiteers.
12.8.2005 10:44pm
dk35 (mail):
But, doesn't it make a difference whether, in fact, the war effort is worth the effort?

Many in this country believe that WWII was worth the effort, whereas the current war isn't.
12.8.2005 11:19pm
Hamilton Lovecraft (mail):
I think it would have been harmful in World War II to criticize the leadership of the United States for attacking Mexico after Pearl Harbor.

No, wait, no I don't.
12.8.2005 11:34pm
SLS 1L:
This discussion is conflating two very different senses of "harmful to the war effort".

One sense is "puts significant political pressure on the government to end the war." This is the aim of all anti-war speech, which is why it's anti-war speech and not pro-war speech. In this sense, there's obviously nothing inherently wrong with "doing something harmful to the war effort."

The other sense is "doing something that increases the probability of American military defeat." Aside from speculation about "emboldening the enemy" and "reducing troop morale," there isn't much in this category other than speech that provides the enemy with access to classified or otherwise hard-to-obtain information. That kind of speech war harmful to the war effort in WWII and would be harmful to the war effort today.

The problem with this term having two senses is that it's very easy for people who want to smear war opponents to conflate them rhetorically. Prove the first sense (easy to prove, but not bad), conflate it with the second (hard to prove, but bad) and Q.E.D., your opponents are hoping for U.S. defeat.
12.8.2005 11:50pm
DJB:
Well, the hyping of polls showing "X% of Americans think the war is a failure" certainly qualify. They hurt morale and serve no purpose but to sell newspapers.
12.8.2005 11:53pm
Visitor Again:
What's the purpose of the question: "What speech is harmful to the war effort?"

Obviously Volokh is not proposing a legal test for when speech is protected because "harmful effect" just doesn't do it. That's a post-World War I test which wouldn't pass constitutional muster today. And Volokh himself disclaims proposing a morality test; he admits he doesn't "think that even antiwar speech that harms the war effort is necessarily immoral."

So what's the purpose of the question? Is it to discourage people from speaking against the war effort? Is it to make it easier to criticize such people? Or what?

As one who spoke out against our last few wars, I think any speech that prompts people to question the war effort on any ground harms the war effort. And, since war protesters want their speech to be effective, that is precisely their purpose. Not all anti-war speech is effective, of course, because some of it presumably fails, i.e., doesn't lead its audience or any part of it to question the war effort.

I leave out the obvious, speech that reveals the details of a proposed military attack or ship movements or a new weapon and the like. I would also imagine that telling 18-year-old troops about to embark for the theater of war that they are murderers of innocent civilians might sap their morale. But not as much as the actual killing of innocent civilians that ensues. And they have their officers to

It is advisable to go to war only when the overwhelming majority of the populace supports the war. It is also advisable to go to war without misleading the populace about the reasons for going to war. These little things ensure that criticism of the war will be minimal.
12.9.2005 12:04am
Visitor Again:
Strike the unfinished sentence "And they have their officers to" in the above message. I was going to make a point related to the recent thread on the divide between the military and liberal education, but decided not to pursue it.
12.9.2005 12:10am
Justin (mail):
When Eugene Volokh gives the "being anti-war is being pro-enemy" schtick, the right has become truly morally bankrupt. Even suggesting such a question helps the enemy, Professor Volokh. Off to Guantanamo with you! :)
12.9.2005 12:42am
murky (mail) (www):
You are not a doctor and the nation is not your patient. Even if the nation were your patient "health" and "welfare" are undefined. Was the Civil War bad for the nation?? I don't see how one can have moral responsibility for that which one doesn't in any sense control. How do you even get out of bed in the morning? Your chief duty in a democracy is to participate.
12.9.2005 12:52am
Medis:
Here is another question:

When is the government doing things that inspire and justify anti-war speech harmful to the war effort?

It seems to me that is the real "threat"--otherwise, anti-war speech during a just war would remain marginalized and unheeded.
12.9.2005 1:58am
Splunge (mail):
It sure is a lot easier to decide this question when the war is safely a few generations in the past, eh? It's worth noting that all major wars with significant consequences undertaken by the United States have had strong minorities (and arguably at times majorities) who opposed it, frequently bitterly, sometimes treasonably.

How could it be otherwise? War is nasty business, involving the deliberate, crafty and unannounced mass murder of other human beings, almost none of whom have caused any of us direct harm. The only organized murder campaigns a.k.a. wars that are ever going to have clear and strong majority support in all aspects are toy wars, wars that are so small, so absurdly easily won, and with such obvious benefits that one can only wonder what the other side was smoking when they agreed to the match.

Against a crafty and resourceful enemy, with a good appreciation for the psychological strategy of warfare, and one who has at least a few solid good arguments on his side (even if, on balance, he is wrong) -- against this fellow the nice broad feelin' good about ourselves consensus is flat impossible. (Actually, the idea of a wishing to build a warm community-spirited consensus before embarking on a killing spree sounds psychotic to me, but I leave it to the mavens of "can't we all just get along?" to sort that out.)

This question may be one of those imponderables answerable only be each individual in his own heart. The historical record is not encouraging: the most necessary war the United States ever fought (the Civil War) provoked dispute surpassing in bitterness and violence anything seen before or since. The most "consensus in favor" recent war we can think of now (although it seemed less so at the time), the Second World War, was arguably one of the least necessary to national survival. (That either Hitler or Tojo could have successfully occupied the continental US before their house of cards at home collapsed seems unlikely to me. Hence this war could probably have been avoided by a cynical policy of tactical retreat, economic warfare, and limited military containment. Too bad for the Europeans, Jews and Hawaiians, of course.)

One of the weirdly naive assertions of the present anti-war body is that only wars of clear and desperate national emergency should really be fought. This seems just about as sensible as ignoring small grease fires in your kitchen, hoping they burn out by themselves, and fighting with industry only those conflagrations that are room-sized or bigger. Maybe these people are those who pulled all-nighters to pass their final exams in college?

A historical case can be made that a great power that forcefully (even viciously, cf. the Romans) prosecutes small wars teaches its enemies to abandon modest-scale warfare as a means of resolving modest differences. (Note for the No Blood For Oilers: I distinguish here between a brutal prosecution of wars when they come and a longitudinal peacetime policy of oppression, which can midwife violence all by itself.)
12.9.2005 2:02am
MikeWDC (mail):
The original question--"What speech (if any) by Americans during World War II do you think would have been harmful to the war effort, even if it weren't deliberately aimed at helping the Nazis win?"--starts by conflating WWII with the American war effort (the question did not specify anti-war speech following American entry) and also seems to consider WWII a war against the Nazis. The sizable majority in the US who opposed American entry into the war (from 1939-1941) did not necessarily want the Nazis to win (though some did) nor did they want the Pacific to become the Japanese empire.

Japan is an interesting case because American anti-war speech before Pearl Harbor did encourage the Japanese to attack--they apparently believed, based on reading the newspapers, that Americans opposed war and would respond to an attack by suing for peace on Japanese terms. Not an intelligence triumph. But the question is, by encouraging the Japanese to attack, did anti-war speech before Pearl Harbor actually advance the anti-axis cause?
12.9.2005 2:23am
Dilan Esper (mail) (www):
I think it's pretty doubtful that ANY anti-war speech, short of disclosing military secrets that need to be kept (e.g., troop movements and the like), really has any effect on the war effort. If you look back, the Civil War was a heavily protested war-- and involved a conscripted army involving just about all able-bodied males, where it is hard to replace those who refuse to serve. (When the force is all volunteer, you can increase pay, benefits, and recruiting to pick up the slack.) Nonetheless, the Union won the war. In contrast, Korea wasn't particularly heavily protested, and it ended in a stalemate. Vietnam was protested (eventually), but people who believe that we could have won that one are seeing it with their hearts, not with their eyes.

Further, if you talk to servicemembers in the current conflict, those who support the war don't seem particularly bothered that people are protesting it.

Where is the evidence that what bad morale that does exist is caused by speech at home, as oppposed to intolerable conditions on the front, bad military planning, lack of leadership or the lack of a strategy.

This business about anti-war speech harming the war is nothing more than a longstanding hawk's talking point. Wherever there has been anti-war speech, there have been other things affecting troop morale-- unfair conscription, maltreatment of the troops, bad conditions, poor planning, an unattainable objective, etc. Eliminate the source of the complaints, and the anti-war speech ebbs as well. Attributing the problems to anti-war speech is mislabeling a symptom as the cause.
12.9.2005 3:47am
llamasex (mail) (www):
Saying that the American Japanese interment during WWII was an immoral act. Would make America look immoral, thus hurt the war effect by lowering the moral of troops. Because who wants to fight FOR an immoral country.
12.9.2005 4:52am
Taeyoung J. (mail):

"they apparently believed, based on reading the newspapers, that Americans opposed war and would respond to an attack by suing for peace on Japanese terms. Not an intelligence triumph. But the question is, by encouraging the Japanese to attack, did anti-war speech before Pearl Harbor actually advance the anti-axis cause?"

Building on this thought (well, sort of) can't we suppose that a combatant's decision to continue to fight or not to continue to fight is partially predicated on his estimation of his enemy's willingness to continue to the fight? That is, if the enemy looks as though he could win, but is unwilling to accept the increased costs of victory, wouldn't that combatant correspondingly upgrade his estimate of his own chances of victory, and be willing to spend more (in men, material, etc.) to realise that higher expected value?

That is to say, by making it look as though Americans may back out (or telegraphing that there is a substantial chance that Americans will just walk away without finishing things), anti-war speech probably encourages stiffer resistance to our war-aims at the margins, increasing the costs of our victory, both on our side and on the enemy's.

I suspect it had the same sort of effect in WWII -- Hitler was convinced, wasn't he, that Roosevelt was the driving force behind American intervention in the European theatre or something, such that he thought the Reich had a fighting chance again, when he heard Roosevelt was dead. Of course, it was rather late for new hopes at that point, but there were probably other examples of the same scattered throughout the course of the war.

"Would make America look immoral, thus hurt the war effect by lowering the moral of troops. Because who wants to fight FOR an immoral country."

I'm not sure that effect is the most significant here -- it may also increase the costs of occupation. To the extent that foreign populations we conquered during WWII (Pacific islanders, the French, etc.) were told by the Japanese and the Germans that Americans would be barbarous and cruel occupiers, and then Americans repeated the charge (I don't know whether they did--only that they could have done) that would -- again, on the margin -- influence more people to resist our occupation. Raises costs of war, etc. etc.
12.9.2005 7:33am
Wild Pegasus (mail) (www):
Disclosing troop movements doesn't seem like anti-war speech. Anti-war speech presumably means speech that encourages resistance to the war or calls for its end. Disclosing troop movements actively aids one side or another.

Of course, disclosing troop movements might be done with the intent of causing a calamity and eroding public support, but that intent doesn't change what's going on: working for one of the sides of the war.

- Josh
12.9.2005 9:02am
Jam (mail):
What part of "Congress shall not ..." is unclear?

How many people were jailed during the War of 1812 for being involved in the Hartford Convention? None that I am aware off. And this during an actual invasion.

Then, how many people were jailed in WW1 and during Lincoln's War? Remember Vallandighan of Ohio?

Is discouraging people to voluntarily join the military because of an unconstitutional/undeclared "war" protected speech?

The dangers of the Central government violating the 1st amendment are far greater than any percieved comfort the enemy might feel.

War is the health of the State.
-- Randolph Bourne
12.9.2005 9:31am
dk35 (mail):
All the questions Volokh is posing regarding this topic, as many commenters here have pointed out, are silly and not worth much intellectual discussion. I think history has shown pretty well that Americans can figure out the difference between free speech and treason (with the exception of a few sad, yet thankfully brief, episodes such as the alien and sedition acts, Japanese internment camps, and McCarthyism).

The more interesting point is the irony shown in the blogs of right wing intellectuals like Volokh. Scrolling through this blog over the the last few weeks, it is fascinating to see the the schizophrenic pattern. On the one hand, posts that express ridicule/express righteous indignation at attempts to shut down right wing speech. Yet on the other hand, here we have attempts to shame/intimidate those who choose to express anti-war speech.

Now before you all jump down my throat, I'm not trying to defend some of the excessive measures taken against those who were expressing, through legal speech, their right wing views.

What I'm saying is that the lack of consistency in defending ALL points of view, including all anti-war speech (as opposed to obviously treasonous actions, such as giving money or secrets to or fighting alongside people who are trying to kill Americans or their allies), with equal vigor (in other words, Volokh's "It's not that I think that anti-war speech is necessarily immoral, BUT..." snide comments don't cut it as defending speech with vigor) make it impossible to take a person seriously as someone who cares about free speech.

Defending everyone's speech (not just the speech you happen to agree with) is not easy. I'm sure everyone who is reading this (including yours truly) has struggled to stay honest on this at one point or another. I guess I'm just disappointed at the state of the American inellectual community when I see that several law professors are such miserable failures at it.
12.9.2005 9:32am
A Rude Guest (mail):
Not sure if this is "anti-war" speech, but I've been seeing a concerted propaganda effort lately in the press that has me a little uncomfortable because it seems like it was purposefully designed to harm the war effort. This category of speech might be called, "publishing enemy propaganda on behalf of individual enemy combatants currently in custody."

I hope that makes a few people uncomfortable, because it makes me uncomfortable. I think there's a fine line between protecting civil liberties and automatically adopting Al Qaeda's talking points on how America lacks the moral authority to hold any terrorist. And it seems to this humble legal drone that the noble ACLU and the folks in the press have pretty much taken the position that every terrorist captured on the battlefield should be granted a trial or released, and they have adopted it knowing full well that the government will be unable or unwilling to do so and would be required to release the enemy--where the enemy would presumably return to his previous profession of trying very hard to kill Americans. Hard for me to conclude that this position is not purposefully designed to harm the war effort, contributing to the deaths American servicemen. Then again, my confused mind isn't as sharp as it once was, and it's possible that I'm simply not paying enough attention to the wonderful principles of freedom involved in killing my own countrymen.
12.9.2005 9:45am
Brutus:
Disclosing troop movements doesn't seem like anti-war speech. Anti-war speech presumably means speech that encourages resistance to the war or calls for its end. Disclosing troop movements actively aids one side or another.

Encouraging resistance to the war or calling for its end pretty clearly actively aids one side or the other.

What I'm saying is that the lack of consistency in defending ALL points of view, including all anti-war speech ... with equal vigor ... make it impossible to take a person seriously as someone who cares about free speech.

Not all points of view are equally valid, and thus not all points of view should be defended with equal vigor.
12.9.2005 10:01am
Houston Lawyer:
It really is a difficult question. Opposition in England helped Washington &Co. to win the American Revolution. WWII involved a full mobilization of the American economy. We haven't put in a full effort since then. In wars where we are fighting a guerrilla action the only way for the enemy to win is to convince the home front that we can't win or the price is too high. Therefore, in these circumstances, the enemy and the domestic opposition share the goal of having the US quit. Although they have different reasons for advocating their positions, the end result is the same. Comments like Howard Dean's surely hurt the morale of our troops and boost the morale of our enemies. He is free to continue on his course, but is subject to rebuttal with that argument.
12.9.2005 10:04am
dk35 (mail):
Of course all points of view are not equally valid. But that is exactly the reason why we need to defend everyone's right to express his or her own point of view.
12.9.2005 10:08am
dk35 (mail):
Of course all points of view are not equally valid. But that is exactly the reason why we need to defend everyone's right to express his or her own point of view.
12.9.2005 10:08am
dk35 (mail):
Of course all points of view are not equally valid. But that is exactly the reason why we need to defend everyone's right to express his or her own point of view.
12.9.2005 10:08am
dk35 (mail):
Sorry, didn't mean to for the comment to repeat 3 times. Computer malfunction.
12.9.2005 10:10am
Medis:
A Rude Guest,

Let me see if I follow your reasoning correctly.

Suppose someone argues, either as a legal or policy matter, that we should treat all detainees captured in Afghanistan or Iraq as POWs. This would not require "trials" for POWs. But it would require initial status hearings before military tribunals, and if we wanted to charge these POWs with ordinary crimes or crimes against international law (including against the laws of war), but we would at least have to try them according to the Manual for Courts Martial. Alternatively, these people could be remanded to the civilian criminal justice system.

Now, we know that the Bush Administration could in fact do this (just like the Brits are, actually). But suppose the Bush Administration is "unwilling" to do this. In fact, suppose they are so unwilling to do this that in certain cases that they would rather just release some of their detainees (an interesting decision, I might note).

Is your thesis that people advocating this policy are deliberately aiding the enemy because the Bush Administration would insist on releasing some detainees rather than follow these procedures? Why aren't you instead saying that the Bush Administration is deliberately aiding the enemy because they would insist on releasing some detainees?

In other words, you treat the "unwillingness" of the Bush Administration to do certain things as an immutable fact, but isn't that just a policy decision?
12.9.2005 10:15am
Humble Law Student:
dk35,

I think you are missing EV's point in an effort to engage in partison bashing.

No one is suggesting that anti-war speech that is non-treasonous should be limited by the law.

We are discussing what kinds of speech may be "unhealthy" for the prosecution of a conflict. However, "unhealthy" doesn't mean it is or should be illegal.

Since when do your free speech rights to engage in anti-war rhetoric prevent me from criticizing your speech? Answer, never.
12.9.2005 10:16am
Jam (mail):
I watched a video, in the Democracy now website, that purports to prove the Afghanistan Northern Alliance's, with some uS and SAS involvement, massacring of over 3,000 surrendered Taliban fighters/soldiers.

Would the promulgation of this information "aiding and abetting?"

What part of "Congress shall not ..." is unclear?
12.9.2005 10:23am
dk35 (mail):
Humble Law Student,

I'm not certain how advocating that both sides of the partisan divide defend each other's right to speak with equal fervor qualifies as engaging as partisan bashing.

Of course you are not prevented from criticizing anti-war arguments. But I have yet to see, on this site, criticisms of the anti-war arguments on the merits of those arguments. What I have seen are subtle (Volokh) and not-so-subtle (some of the comments) attempts to insinuate that those who make anti-War comments are committing treason and/or being immoral.
12.9.2005 10:28am
Humble Law Student:
dk35,

You keep conflating two different things. Since when have any of us conservatives advocated using the law to restrict your speech? Never.

We avidly defend your right to say what you want; however, we just as strongly criticize what you have to say. There is no hypocrisy between the two, as you seem to imply.

You keep trying to assert some kind of "deviousness" to conservatives by purposefully conflating "making anti-war speech illegal" and "making lawful criticisisms of speech."
12.9.2005 10:32am
dk35 (mail):
The hypcrisy lies in the tone with which the speech issues are discussed. EV chooses to frame the debate over anti-War speech with the question whether or not anti-War speakers are moral/whether they are acting treasonously. When talking about right wing speech, he frames the debate over the actions of those who oppose the speech. That is the hypocpricy I am alluding to.
12.9.2005 10:44am
dk35 (mail):
The hypcrisy lies in the tone with which the speech issues are discussed. EV chooses to frame the debate over anti-War speech with the question whether or not anti-War speakers are moral/whether they are acting treasonously. When talking about right wing speech, he frames the debate over the actions of those who oppose the speech. That is the hypocpricy I am alluding to.
12.9.2005 10:45am
Medis:
HLS,

I think part of the problem is that people like Eugene are not just engaging in criticism of the substance of the speech. That, of course, is unobjectionable--the basic notion being that the best cure for bad ideas and falsehoods is to argue for good ideas and the truth. In other words, this approach places a very high value on rational discourse.

Rather, Eugene and Co are trying to suggest that the very acts of speech themselves are immoral (as opposed to merely being wrong in the substance of what they say). Although he falls short of arguing that such "immoral" speech should be illegal, this entire line of analysis leads us away from rational discourse, and toward some sort of system in which the content of speech does not matter, but merely the consequences. Indeed, as I commented elsewhere, it is amazing how little the actual truth of the speech seems to matter in Eugene's analysis of the morality of the speech acts in question.

Fortunately, our Constitution has in fact already taken a stand on this issue, and it has found that a society based on rational discourse--a society that gives what I might call deontological protection to free speech--is preferable to a society which treats speech acts as just another ordinary part of a purely consequentialist moral system. But it is indeed distressing that apparently without pause, some people are willing to cast aside these basic principles.
12.9.2005 10:46am
Richard Aubrey (mail):
Medis:
How is discussing the issue leading to anything?

Is it illegal, or immoral, or unseemly to discuss the consequences of speech?

I believe that people whose actions have a likely result can be presumed to will that result. They may have that result as their primary goal, or they may have it as a consequence of something else they are trying to do. In either case, they have some responsibility for it.


It would be a convenience for those who will a result if they could insist they be believed when they claim they have no responsibility, especially when the result is considered undesireable by most of their fellow citizens.
12.9.2005 10:59am
Anderson (mail) (www):
Hello, commenters: EV is "asking" a "question." He has an "opinion," but his mind is obviously not made up on the subject.

I don't understand the resentful "how dare he even ask" responses.
12.9.2005 11:03am
Steven J Schmitt (mail):
I'm embarrassed to admit, thinking about this question kept me up most of the night last night. I had real difficulty coming up with rules and supporting examples that did not somehow validate my biases regarding the current US war.

Here's what I have: Whether anti-war speech is harmful and immoral depends upon perception by the enemy, status or influence of the speaker, and timing. I think harmful is more easily discerned than immoral, but that may be because I am really bad at understanding moral philosophy. Of course, this is all in absence of clear evidence that the speaker was actually intending harm and more death and destruction (which would make this discussion unneccesary in that specific case).

Perception by the enemy: It does not matter what the person making the comments thinks or has as their motivation. The enemy's finding of comfort or support determines if the speech is immoral or harmful. After all, if the enemy does not think they have lost a war, then you have not won. So the questions are -- Does the enemy take support from the comments? Do the comments seem to support the express war aims of the enemy? Does the enemy take the comments in toto and use them in their propaganda?

Authority of the source: The higher the status of the speaker, the more likely their speech will be harmful or even traitorious. I do not think this point bears as much on the morality as it does on the harm or lack thereof.

Timing: If your country's troops are engaged in active battle, comments opposing the war aims or questioning the strong core values of the troops in that battle would be harmful, and could very well rise to immoral. I think there is a place for opposition speech to be heard before the battle is joined and after battle is completed, but during a battle the opposition speech generally has the effect of undermining troop morale and possibly causing harm due to lowered morals. This question seems to be where the locus of morality vs immorality resides.

The best example I could think of: If Hermann Goering made a speech to the Luftwaffe during the Battle of Stalingrad calling for mass withdrawal of German troops from the USSR and negotiating a peace settlement, that would have been definitely harmful. I'm having difficulty on the morality part, since I would have taken great comfort in this sort of speech. (Let's ignore for the moment that Goering would have been shot on sight if he did such a thing)

Two examples I ponder from WWII: The support of Lord Londonderry for Hitler and Germany, and the flight of Rudolf Hess to Scotland in 1941. The actions of these two men were definitely harmful to their countries; were they immoral?
12.9.2005 11:04am
Stevethepatentguy (mail) (www):
I would think holding a sign that reads "Maimed for a Lie" would qualify as intentionally undermining the moral of the military and is harful to the war effort.

Thanks Code Pink.
12.9.2005 11:07am
dk35 (mail):
Stevethepatentguy,

I assume that you don't agree that "Maimed for a Lie" is a true statement. But, for a moment, just for the sake of argument, assume that it is a true statement. Would you still be so quick to say what you said? Or, might you then be less concerned whether or not the statement does or does not hurt the war effort, and more concerned with hoping that by making the statement you will help to end the war and thus actually minimize the harm to the troops by getting them out quicker.

Now, maybe you are riled up by the assumption I am asking you to make. That's fine, let's all debate that assumption. As Medis so eloquently explained above, that would be the "rational discourse" upon which our society is based.
12.9.2005 11:15am
eddie (mail):
Again with the apples and oranges.

Before exploring some theoretical discussion of what might have been harmful during WWII, there needs to be some reason to compare these two absolutely opposite campaigns.

Even running through a cursory list of the differences between the "war" in Iraq and WWII would be an insulting and inane exercise.

And by "harm" what do we mean?

Does this mean that being a Quaker is harmful to the war effort?

And if we are going to keep up this exercise, are we then going to be asked what speech might be harmful to the "war" on terrorism.

This is Orwellian to the extreme: using a revisionist analysis of the past, i.e. conjuring up past harms to the war effort (which even if there were harms, the effort in WWII seemed not ultimately to be "actually" harmed given the outcome), and then by some analogizing or inferential reasoning, conjure up the rules to apply to the conflict in Iraq.

I think that discussing the debasement of the term "war" would be a much more productive analysis to conduct. Because unless someone is giving the positions of troops or information to disable critical technology, simply having an opinion should never be seen as harmful to a political act, at least in a democracy. That is a slippery slope that noone should be around.

Is this really a serious question? And if so are we suggesting that some remedy is requiring to root out and stifle these "harmful" ideas and statements?
12.9.2005 11:32am
A Rude Guest (mail):
Medis,

I personally worked against the re-election of President Bush, but I have to say, if it's a question of trusting Bush or the ACLU as to the national security impacts of the decision to put a terrorist on trial or allowing him to go free, I'm going to have to go with Bush and the DoD on that one.

I understand your position, Bush is scummy, and I would love to join you in calling him a traitor, but it simply wouldn't be true, and I feel a little more strongly about this than to treat it so trivially. While trying terrorists might be possible, I fail to see how it would not harm national security and endanger Americans if we started forcing DoD to pull soldiers from the line to participate in trials, revealed potentially useful intelligence to the enemy to aid him in his defense, and allowed terrorist defendants to use our presumptions of innocence and "prophylactic" protections to get themselves right back onto the battlefield. Geez, I don't even want to think what a "revolving door" would do to the morale of men in the field, let alone their response to offers of surrender by the enemy.

Like I said, it makes me uncomfortable, but you can't deny that the current anti-war talking points do not advance a policy that would increase the chances that our friends and neighbors will die at terrorists' hands.
12.9.2005 11:33am
Stevethepatentguy (mail) (www):
"Maimed for a Lie" is not rational discourse. If I were from your end of the ideological spectrum I would call it hate speech. The point of the slogan is to make injured soldiers and Marines feel bad. You may proudly defend it and Code Pink has the right to say it. I have the right to say it is shabby and unpatriotic.

You state "help to end the war and thus actually minimize the harm to the troops by getting them out quicker." The fastest way to "end the war" is to lose. Hoping that your country loses a war may not be treason, but I'm not sure what other term would apply.

Code Pink, and it appears you, want to go back to the good old days of: feeding people into shredders, rape rooms, bounties for suicide bombers, and poison gas used against general populations.
12.9.2005 12:03pm
Medis:
Richard,

As an aside, I mean "leading" in the intellectual sense--certain ideas leading to other ideas.

Anyway, I would say that a consequentialist approach to evaluating the morality of speech is "unwise". I use that term in order to embrace a wide variety of possible rationales for taking a more deontological approach to the morality of speech. For example, I don't want to exclude rationalist arguments (eg, something like a Kantian argument about lies and telling the truth), nor pragmatic arguments (eg, a rule utilitarian or Burkean argument about lies and telling the truth). And I am inclusive on this issue because I personally find some truth in a variety of different moral theories.

A Rude Guest,

Of course, that is a false dichotomy--I would place blind faith in neither the Bush Administration nor the ACLU.

Similarly, I am not tempted to call either Bush or the ACLU "traitors". Insofar as I disagree with their policy and legal arguments, I can express my disagreements without claiming that they are committing such a crime.

Finally, you identify some of the likely costs of adopting such procedures. But you do not discuss any of the possible benefits, including the possible benefits to military morale, popular domestic support for the war, support among our allies around the world, intelligence gathering, and, most importantly, support within Iraq itself. Similarly, you do not discuss any of the possible harms to the current approach, again in all those areas and perhaps more.

Which is not to say that you are necessarily wrong about where the best balance of costs and benefits ultimately resides. But it is certainly not clear that the Bush Administration has made the best choice, and so one cannot assume that advocating for another choice means the advocate wants to damage the "the war effort".
12.9.2005 12:13pm
dk35 (mail):
Oh well, so much for rational discourse concerning whether people are being maimed for a lie. I guess I'll take my shabby, unpatriotic, treasonous self off to the side and figure out how I'm going to ask a man to be the last man to die for a mistake.
12.9.2005 12:21pm
Anderson (mail) (www):
I guess I'll take my shabby, unpatriotic, treasonous self off to the side and figure out how I'm going to ask a man to be the last man to die for a mistake.

dk35, don't do that if you're planning to run for president in 30 years ... I have a feeling it will haunt you. (Does Karl Rove have a son?)
12.9.2005 12:30pm
Jam (mail):
Judge my words by what others percieve it to be and not by what I actually mean them to be. (feel like an egg?)

What a solution. What nonsense.

Imagine Usama bin Laden coming out in support of Bush and the Republicans because they got rid of Saddam, something that Bin Laden wanted to do. Then, will it be "aiding and abetting" to support Bush and the Republicans?

What part of "Congress shall not ..." is unclear?
12.9.2005 12:38pm
Anon1ms (mail):
"If Hermann Goering made a speech to the Luftwaffe during the Battle of Stalingrad calling for mass withdrawal of German troops from the USSR and negotiating a peace settlement, that would have been definitely harmful."

More harmful than what actually happened to the German army?

And thus the folly in trying to determine the harm of strategic speech agsinst the war (as opposed to, say, disclosing troop locations and movements). Who is to say that the alternative to the current course is not better for the nation?
12.9.2005 1:03pm
Richard Aubrey (mail):
anon1ms

Interestiing picture you paint.

The point you miss is that Goering wasn't in a position to make the Germans retreat before they got involved in Stalingrad. He could only make noise.

The question is what would have happened in reality--we're speculating about alt-hist as if it's reality, here--if Goering had said that moments before being shot.

Maybe a more competent Luftwaffe guy would have taken over. Bad for the Allies. Since Germany was not in any sense a democracy, the effect on the population and its effect on the war would have been difficult to follow. Perhaps it would have led to the German generals having more brass and convincing Hitler not to attack at Kursk, thus saving massive combat power for the long, horrendously bloody defensive fighting that followed. Worse for the Allies and the Germans.
Maybe it would have cowed the the staff even more and made them less likely to give advice, good or bad, to Hitler.
There's not much use in comparing a speculation about Goering with our current situation.
12.9.2005 1:16pm
Visitor Again:
Eugene's problem is that he hasn't yet come up with a way to appear to support free speech while at the same time relegating to some illegitimate status (not illegal or "even" immoral) speech which has consequences he doesn't like (harmful). It is a problem that no doubt keeps him up nights. Not for him the proverbial marketplace in which the free exchange of ideas produces the proper result. That doesn't have enough oomph in it and sometimes it goes wonky and produces the wrong result. He wants some handy delegitimization tool which will put those traitorous, treacherous and tiresome lefties where they belong, something which will convey what the scarlet letter or the pinko label once did, an almost universal emblem of shame and disgrace.
12.9.2005 1:19pm
Anon1ms (mail):
Richard -

I think your speculating about all the possible outcomes proves my point.

I would hope in the U.S. that we are not going to "immediately" shoot those who disagree with the way the supreme leader is conducting the war.

To follow the original example you proposed, had Goerring not been shot, but rather had been able to convince Hitler that this his was a better course of action, would it still be harmful?

If not, then is the determining factor whether or not those in power agree?
12.9.2005 1:39pm
Houston Lawyer:
Just because the Professor supports free speech doesn't mean he can't use all his rhetorical powers to cast the speaker he disagrees with in the most unflattering light. If you are called unpatriotic or a traitor based upon what you say or write you are not being censored. If you are afraid of being lambasted for your views, you should keep them to yourself. Free speech is a two-way road and if you say something that may give aid and comfort to the enemies of this country, someone will point that out.
12.9.2005 1:52pm
Richard Aubrey (mail):
Anon1ms

We're not going to shoot anybody at all for any kind of speech.
I know you didn't mean it literally, but when people talk that kind of crap, it makes it difficult to bother with them.

You are, outside the obscenely stupid comment about shooting, implicitly crying victim when somebody disagrees with you.

Get a thicker skin.

I'll say this, which I have said before. It is most useful to consider the likely result of a course of action to be the willed result, the intent.

This is particularly true when the likely result is seen as undesireable by many people AND when the actor in question claims it is the farthest thing from his mind and all he wants is milkshake fountains in schools and peace flowing like a river and baby bunnies and so forth. The smartest thing to do is to look at the likely result and if the actor claims he wants something else, to presume he lies about his intent.
This saves a lot of time.

Whether or not those in power agree with some speech is irrelevant.
12.9.2005 1:59pm
Jam (mail):

If you are afraid of being lambasted for your views, you should keep them to yourself.


That is not the issue. The issue is the government going after you to throw your rear end in jail for saying soemthing they deem "unpatriotic" and "treasonous" because they deem it as "aiding and abetting" the enemy.
12.9.2005 2:41pm
Fishbane (mail):
Like I said, it makes me uncomfortable, but you can't deny that the current anti-war talking points do not advance a policy that would increase the chances that our friends and neighbors will die at terrorists' hands.

That's actually easy to deny. Harsh treatment upon capture torture enhanced interrogation, secret detention, no due process, etc. all encourage the enemy to fight harder - if they knew they would be treated humanely upon capture, that is sure to play into calculations about how hard to fight. There's a strong case to be made that the Iraq army was rather half-hearted about the fight, due to the U.S.'s reputation before recent revelations.

Thus, the argument would be that the ACLU, etc. are attempting to help the war effort by restoring our reputation for humane treatment for POWs.

This is before one gets into the hearts and minds discussion, but based on many of the same principles.
12.9.2005 2:51pm
Medis:
Houston Lawyer,

What you are basically describing is an "ad hominem" attack. I don't think one can categorically say that such attacks are unwise, but they are usually not very effective, and can often be counterproductive. I'd also suggest that they are actually immoral in some circumstances (eg, when your ad hominem attack is misleading or baseless).
12.9.2005 4:38pm
Anon1ms (mail):
"This is particularly true when the likely result is seen as undesireable by many people AND when the actor in question claims it is the farthest thing from his mind and all he wants is milkshake fountains in schools and peace flowing like a river and baby bunnies and so forth. The smartest thing to do is to look at the likely result and if the actor claims he wants something else, to presume he lies about his intent.
This saves a lot of time
."

And thought.
12.9.2005 5:12pm
Houston Lawyer:
An ad hominem attack is made by attacking a person's character instead of answering his contentions. If I attack Ted Kennedy's position on Iraq based upon his drunkenness, adultery or manslaughter, that would be ad hominem. If I say his arguments are giving aid and comfort to our enemies and that he is therefore unpatriotic and traitorous, I am merely responding to his position. Most of the ad hominem attacks in this debate (but not on this page) have been against the President and his defenders.
12.9.2005 6:08pm
Taeyoung J. (mail):

I'll say this, which I have said before. It is most useful to consider the likely result of a course of action to be the willed result, the intent.

This is particularly true when the likely result is seen as undesireable by many people AND when the actor in question claims it is the farthest thing from his mind and all he wants is milkshake fountains in schools and peace flowing like a river and baby bunnies and so forth. The smartest thing to do is to look at the likely result and if the actor claims he wants something else, to presume he lies about his intent.

Is that really the best course to take? I think it presupposes something that is probably not true -- that their worldview operates according to the same rules as yours. Especially when it comes to something like this, where the chains of causation are awfully hard to entangle, doesn't it seem quite likely that they don't think their activities will produce the result you see as likely?

To take an example -- many people think homegrown revolution (Communist, anticolonialist, whatever) is the best thing since sliced bread. Oppressed people rising up against their oppressors and speaking truth to power and whatnot. Now, I think revolution has a pretty poor track record, and tends to make things worse (often much, much worse) than they were before. But for me to go and assume that because Communist or socialist revolution produces misery, squalor, and the most abominable deprivation -- all very naturally and likely in my worldview -- that therefore Communists and Socialist and their ilk want to increase the deprivation, squalor, and misery in the world? It would be rather uncharitable so to imagine.

To take yet another example -- consider affirmative action. The effect of affirmative action in college admissions (and this much, I think, is not really in doubt) is a reduction in the proportion of Asians at a given college. Should I conclude from that, that the people who argue for affirmative action secretly do it because they're afraid hypercompetitive Asians will kill the curve for their sons and daughters? Now, I may think that, in the darkest recesses of my mind, but to accuse supporters of affirmative action of harbouring an anti-Asian animus would be unfair.

And on the flip side, many people who disagree with me are devotees of a sort of "blowback" model. Now, I happen to think "blowback," as it is usually used (in casual argument) is basically a kind of gussied up karmic thinking, a high level heuristic that gets predictions wrong as often as right, and is basically useless as a grounds for decision. But other people think my policy preferences lead (likely, probably, inevitably, etc.) to blowback. Is it fair for them to conclude that I want blowback against the US? I don't think so.

So really, I don't think your approach is particularly useful.
12.9.2005 8:01pm
Medis:
Houston Lawyer,

You said: "Just because the Professor supports free speech doesn't mean he can't use all his rhetorical powers to cast the speaker he disagrees with in the most unflattering light."

You were explicitly talking about casting the SPEAKER in an "unflattering light," as opposed to his CONTENTIONS. And I am interested in your distinction between attacking a person's character and calling them unpatriotic.

Anyway, regardless of what you want to call these "rhetorical" techniques, I would repeat my same claims: use of these tactics is usually ineffective, often counterproductive, and sometimes immoral.
12.9.2005 8:33pm
Taeyoung J. (mail):
"attacking a person's character and calling them unpatriotic. "

Honestly -- is patriotism a necessary aspect of good character? It seems more incidental than that. I mean, I happen to support the US in most things, but I'm only mildly patriotic at best, and downright unpatriotic in some areas (for example, I think we have a flag that looks like it was designed by committee, and our national anthem is silly). Our national ceremonies leave me cold.

Being unpatriotic is, in the ranks of bad character indicators, pretty minor. It's nothing like being a murderer, or a pederast, or anything like that. It's not like being an oathbreaker, a liar, a cheat, or an adulterer. It's nothing like being a traitor. This notion that "unpatriotic" is somehow this most horrible aspersion to cast on someone's character is, to be quite frank, more than a little bizarre to me.

I can understand why, from a strategic perspective, one wants to avoid being labelled unpatriotic (at least if one is a politician). That's because Americans are patriotic, by and large, and lots of swing voters regard those who are not with a certain contempt. But as an attack on character? Err . . . no. I think it falls somewhat short.

Really, I think it's closest to accusing someone of being an atheist. In years past, certainly, this was a damaging accusation . . but atheism doesn't tell us anything about a person's good character (in my opinion, at least, but then, I am biased). So also, pretty much, with unpatriotism. I mean -- so someone thinks you don't love your country.

So?
12.9.2005 8:49pm
Medis:
Taeyoung J.,

I think your analysis supports my contention that this sort of rhetoric is generally ineffective. But mild or not, I think it is clearly an attempt to attack the character of the speaker (you don't love your country enough!) rather than an attempt to attack the content of the speech (that is a terrible idea, and here's why!).
12.9.2005 8:53pm
Taeyoung J. (mail):
"supports my contention that this sort of rhetoric is generally ineffective. "

Oh, to be sure. Or rather, well, for values of "ineffective" meaning "unfair." It doesn't really attack people's motivations (as opposed to their arguments) so much as insinuate that they lack a motivation.

But it's not personally insulting in the way an attack on character would be. And less hurtful than accusations of racism.

On the other hand, I would temper that by saying that one can draw inferences about peoples' motivations from their public pronouncements and their policy positions. Calling something anti-Semitic, for example, impute motive to an act, rather than letting it stand alone. But it is quite possible, I think, to take someone's positions (or take a particular position), and strip away the possible (or proffered) explanations, until at the end, all that is left is bare animus. In the same way, I think it's possible to infer that someone is unpatriotic. And in an election -- for an elected official, that is -- that's a perfectly proper thing to consider, I think. I wouldn't vote for lukewarm me for high public office, to be sure.

But it is less so (less proper, that is) in a discussion amongst the laiety (e.g. on this board).
12.9.2005 9:11pm
Medis:
Taeyoung J.,

Not that this matters, but I was think of "character" in basically an Aristotelian sense. That would include something like our dispostions to feel certain ways about certain things, which would include how we feel about our country, Jewish people, or so on. So, in that sense accusations of insufficient patriotism or Anti-Semitism would be attacks on character.

Of course, "ad hominem" attacks as a rhetorical device include more than just attacks on "character" ... they include any attacks on the speaker rather than the content of the speech. And as I noted, I don't think they are always unwise. Just usually.
12.9.2005 9:22pm
pwb (mail):
First, the answer to the question is that it would never be possible to prove that anti-war speech was harmful to the war effort. It would be relatively easy to make arguments that anti-war speech helped the war effort (pressured government into stepping up force, made enemy feel complacent, etc.).

Second, I agree that the question has a cert "have you stopped beating your wife" quality to it. Just the mere asking of it somehow gets a point across. I think it's a thinly veiled attempt to guilt those who are against the war effort.
12.10.2005 12:35pm