Legal Commentary

Free Speech That Helps Bad Foreign Military Groups, and the Coordinated/Independent Advocacy Distinction

By Eugene Volokh

I blogged several items yesterday about Holder v. Humanitarian Law Project. I?m still digesting the implications of the majority opinion, but it tentatively strikes me as somewhat troubling: It does allow a content-based restriction on speech by Americans, and while I think it can be limited to speech coordinated with designated foreign terrorist organizations ? so that speech that?s independent of that organizations remains protected even if it ends up helping them ? (1) that limitation is not as clearly set forth as I?d like, (2) the majority doesn?t say much to justify the constitutional significance of the distinction, and (3) I?m not positive that the distinction is sound (though I?m also not positive it?s unsound). 

But I thought that it might be helpful to think about a slightly different fact pattern that might shed light on the coordinated/independent advocacy distinction. The fact pattern isn?t identical, but it strikes me as similar enough to be potentially instructive.

The fact pattern comes from the treason-by-propaganda cases, such as the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this ?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.

The court of appeals upheld Gillars? conviction, including against a First Amendment objection; the Supreme Court did not review the case.

Now the substantive law of treason generally requires a purpose of helping the enemy; the Humanitarian Law Project Court interpreted the material support statute as not requiring such a purpose. But let?s set that aside for now. It seems to me there are several possible First Amendment rules that could be applicable to this sort of case:

1. 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). That seemed to be the court?s view in Gillars: ?The First Amendment does not protect one from accountability for words as such. It depends upon their use. It protects the free expression of thought and belief as a part of the liberty of the individual as a human personality. But words which reasonably viewed constitute acts in furtherance of a program of an enemy to which the speaker adheres and to which he gives aid with intent to betray his own country, are not rid of criminal character merely because they are words.? This exception would justify punishing any speech that falls within the statutory and constitutional definition of ?treason.? 

   I think this 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.

2. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. This, though, 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.
3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. I wrote several years ago that this is probably the best test in treason cases, but I?m not positive about it. Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), might be read as focusing on this, when it reasoned that ?Trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment. Congress may make criminal any type of dealing with the enemy which in its judgment may have the potentiality of harm to our national interests, including acting as a commentator on the enemy?s short wave station.?
4. 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.
5. 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. 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.

(I?ve also written briefly about this before, in this article [PDF pp. 4, 13, 65?66], and on the blog here and here.)

Which line do you think is constitutionally sound as to treason? How does that bear, if at all, on your judgment about the material support statute (which, to be sure, requires only knowledge and not purpose, and applies to groups that may not be fighting the U.S., though they have been found by our government to be engaged in foreign terrorist acts)?

Full post as published by The Volokh Conspiracy on June 23, 2010 (boomark / email).