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 those 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:
- 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.
- 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.
- 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.”
- Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.
- Speech is protected regardless of the speaker’s purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. 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)?
zuch says:
Prof. Volokh:
Seeing as treason requires both 1). adherence to an enemy, and 2) giving them aid and comfort (ignoring actual instances of “levying war” as more trivial), I think that there must at least be actual “aid” given to them. Purpose to aid them is not sufficient.
One might construe the “giving them aid and comfort” to be a requirement/specification/qualification of the “adherence” that (only) such “giving of aid and comfort” is a prohibited “purpose”. It is hard, though, to think of “adherence” which had different purposes which might escape the “treason” rubric.
But I don’t think that the requirement for “adherence” is dispensable (nor automatic given a “purpose” or act of “giving them aid and comfort”).
None of your possibilities here require that overt act of adherence, only “aid” or attempt to “aid”. As has been pointed out by many, a neutral attempt to “aid” everyone (say, by the ICRC, in treating battlefield casualties) should not be considered the high crime of treason, for quite a number of compelling reasons.
Disclosure: My wife and I contributed to the ICRC in the Haiti earthquake aftermath.
Cheers,
June 23, 2010, 12:11 amplaidunicorn says:
I have a question, but it’s not necessarily what this post is asking…who decides who is the enemy? Can a citizen provide aid to Hamas? They are without a doubt a terrorist organization, but if the US government is giving them material support why wouldn’t a citizen be able to?
June 23, 2010, 12:14 amORID says:
3 and 4.
June 23, 2010, 12:21 amI guess I have a question about proxies with the same political goals as terrorist groups. Those proxies can have the same members, but someone helping the proxies may not necessarily know membership is shared… right?
Rich Rostrom says:
What about speech that is specifically intended to incite hostility to the U.S., in particular violence against U.S. forces. As, for instance, collecting and publicizing “confessions” by supposed U.S. soldiers to atrocities? Suppose intent to provoke such violence cannot be proved, but such violence is an obvious probable consequence of the speech?
June 23, 2010, 2:22 amRS says:
Using a combination of the Bush approach of “You are either with us or against us” and conducting a never-ending “war on terror,” it’s possible for the US to perpetrate anything against a foreign or US citizen, and it gets the legal backing of the US Judicial system through nit-picking.
If the current ruling were applied retroactively, it’s possible to jail oprah winfrey since Nelson Mandela and ANC ( the current ruling party in South Africa ) were, not so long ago, designated as a terrorist and a terrorist organization respectively. Since Oprah helped to build and run a school in South Africa, she can be charged under the current guidelines.
Hell, Israel, which had a hand in creating hamas, can now be charged for terrorism because of it’s earlier support of Hamas.
June 23, 2010, 4:49 amStephen Lathrop says:
The wisdom of the founders in nailing down a definition of treason in the Constitution is proved and reproved. Politics again and again conjures treason simulacrums in an attempt to criminalize opposition to forced conformity and war-like violence. Citizens ought to be able to rely on the courts to protect them from that.
June 23, 2010, 6:57 amORID says:
I still think the reaction to this case has been too much, someone else can explain. I’ve seen headlines that said “providing advice within international law ruled against the law”, but that’s not what the opinion said. The opinion said the groups challenging the law never specified exactly what they will be doing or desire to do. Thus, the scope seems limited to answering the question, “Is it Constitutional for Congress to enact a law like this”. I think I agree, it is constitutional.
Until there is presented a case or controversy before the Supreme Court, we won’t know exactly what type of speech is permissible. Furthermore, if there is a case or controversy, one would have to convince 2 judges (Kennedy and Ginsburg?) of the 6 that it is permissible free speech. Thus, the correct answer would be “permissible free speech is what Kennedy and Ginsburg say it is”, no?
June 23, 2010, 7:21 amChris Travers says:
Is it intended and likely to cause imminent lawless action?
June 23, 2010, 9:08 amChris Travers says:
I guess I had trouble reading this as a feeling that the claims are too general to prevail in pre-enforcement action with the exception of advocacy on behalf of Kurds and Tamils. And the section on legitimacy was greatly troubling. That seemed to settle issues of law in entirely the wrong way.
June 23, 2010, 9:11 amSCOTUSblog » Wednesday round-up says:
[...] non-nominations coverage, the Court’s recent opinions are still receiving attention. At the Volokh Conspiracy, Eugene Volokh discusses the Court’s opinion in Holder v. Humanitarian Law Project, the Term’s [...]
June 23, 2010, 9:40 amChris Travers says:
Expression for the sake of conduct (encouraging someone to DO something) is less protected than encouraging someone to BELIEVE something. This is, I think, a fundamental principle in First Amendment law (though IANAL) and represented in cases from Yates v. United States through more recent cases like Universal v. 2600.
So I’d propose a a two-prong test:
Speech aiding foreign military groups is unprotected if:
1) the speech is intended to encourage someone to DO rather than merely believe something, and
2) the action encouraged is either intended specifically to betray the US by causing material harm to US interests, or is specifically known to further continuing lawless action (I’d treat all foreign lawless action as “imminent” for First Amendment analysis).
If one is merely trying to convince someone to believe something, then it’s completely untouchable by Congress (not even meeting strict scrutiny can allow Congress to address beliefs in this manner), but I would draw a line at speech by one who adheres to our enemies specifically intended to betray the US during a conflict by causing the US material harm. That strikes me much more as practical regardless of the form taken (but I cannot see how one could intend an action to betray the US and cause material harm if it’s merely intended to cause someone to believe something). For example, the Gillars video would be argued to be intended to encourage people to oppose the war at a critical point in time, with the timing of it’s airing, it’s content, and the relationship between the defendant and the nation we were at war with being evidence of that practical (as opposed to expressive) intent.
If one is trying to convince someone to do something, then what is the action that is encouraged? What’s the level of scienter or mens rea involved? Treason, for example, requires specific intent to betray the US. One cannot accidently commit treason no matter what you do. I think where such specific intent exists to cause specific harm and can be proven, I think it may be that the scope of First Amendment protections would be very narrow. On the other hand, specific knowledge (as opposed to intent) or non-specific intent or knowledge should respect a larger scope simply because it’s harder to separate out practical from expressive elements.
This two part test wouldn’t even require overturning Gillars, but it would require narrowing the opinion delivered yesterday.
June 23, 2010, 9:46 amBob from Ohio says:
#3. Having contact, whether being “employed” or just talking (ie “cordinating”) to an enemy is sufficent to meet the aid and adherence portions of the constitutional treason clause. Employed or paid are too narrow. A volunteer helper of an ememy is just as dangerous as one who does it for pay. Worse even in a way.
#5 is insane. Tokyo Rose made broadcasts aimed at undermining US morale and will to fight. Treason without any doubt.
Now, there is always a question of “adherence” but that is a matter of fact. If an “Al Queda Rose” could prove that her family was held hostage then it means she did not adhere to the enemy.
June 23, 2010, 10:26 amChris Travers says:
Are you saying that someone who makes disloyal statements is guilty of treason until proven innocent?
June 23, 2010, 10:40 amepeeist says:
“Treason without any doubt”?!
Try reading (start with Wikipedia?) about “Tokyo Rose”, she was originally not tried for lack of evidence, the perjured testimony that led to her later conviction when for political/popular protest reasons she was tried, the investigation and discovery of this which led to the much later UNCONDITIONAL PARDON BY PRESIDENT GERALD FORD, etc. There’s even some evidence that she may have used her activities as a cover to smuggle food and medicine to Allied prisoners.
You might still think she was, under the definition of treason in the Constitution, a traitor, but to assert she was such “without any doubt” is ridiculous (and if she were alive, defamatory, though likely not actionable given her status as a “public figure”) and substantially weakens the credibility of any arguments you make.
June 23, 2010, 11:31 amGo Horns! says:
I’ll take #5.
What if someone forms the “U.S. Al Queda party” with an endorsement from Osama, and advocates that the U.S. reverse course on several foreign policy points? Not going to get my vote, but they should be allowed to try and persuade me.
June 23, 2010, 11:48 amChris Travers says:
Fine by me. But what if the party organizes a targeted propaganda campaign designed to interfere with a specific operation? Should that still be protected? After all, that’s moving beyond mere competition in the marketplace of ideas.
June 23, 2010, 12:19 pmDonald Kilmer says:
I’m with plaidunicorn on this. Where is the government’s “enemies list” posted so that I have notice before I interact with any person or people that might land me in jail? Since Congress no longer has the b@lls to declare war (Art. I, Sec. 8, Cl. 11), am I supposed to Google: U.S. Government’s Enemies List? Or do we take a poll?
June 23, 2010, 12:43 pmJardinero1 says:
I still struggle with where the Executive and the Congress obtain the authority to name groups and individuals as criminal or terroristic. There is a specific provision prohibiting bills of attainder.
I would recommend that anyone who is troubled by this decision and everything leading up to it read this biting editorial:
http://gonzalolira.blogspot.com/2010/06/is-us-fascist-police-state.html
Here is the money quote:
“Holder v. Humanitarian Law Project is not about limiting free speech—it’s about the state expanding its power to repress. The decision limits free speech in passing, because what it is really doing is expanding the state’s power to repress whomever it unilaterally determines is a terrorist.”
June 23, 2010, 1:22 pmAndy Patterson says:
What about Ezra Pound, the American citizen?
June 23, 2010, 1:25 pmEluchil says:
The list (at least as far as Holder is concerned) is here. It is an interesting question as to how to define “enemies” for the purpose of the treason clause. While I’d certainly prefer that Congress actually declare war when we go to war against an enemy, I can’t see any court rejecting a formal Executive branch designation pursuant to a statute (like AEDPA or the infamous AUMF) on that basis.
June 23, 2010, 1:38 pmChris Travers says:
Would allowing an AEDPA-like system to define treason violate separations of powers? One would assume that generally an AUMF would not if it was properly written and/or narrowly read. (I could see treason prosecutions for Americans assisting Al Qaeda in carrying out terrorist attacks. I cannot see them for helping the PKK or LTTE.)
I.e. my thinking is that Congress cannot let the executive identify for political reasons who is an enemy. I think it might require more Congressional control than that.
June 23, 2010, 2:37 pmDonald Kilmer says:
Isn’t this dicussion about designiation of the “enemies list” the whole point behind restricting the “declaration of war” power to congress? In other words, we are either at war, or not at war, with some nation or other organization. We deal with everyone else as ally or neutral.
Letting the executive branch cherry pick who/what constitutes an enemy is a violation of separation of powers.
June 23, 2010, 4:31 pmWednesday round-up | theConstitutional.org says:
[...] non-nominations coverage, the Court’s recent opinions are still receiving attention. At the Volokh Conspiracy, Eugene Volokh discusses the Court’s opinion in Holder v. Humanitarian Law Project, the Term’s [...]
June 23, 2010, 5:51 pmGaryP says:
Mea Culpa. On an earlier thread on this subject I posted based on my misunderstanding of the substance of the arguments being made. I copied that post to another site I read: BookWorm Room.
This is my followup post on BookWorm Room to hopefully better characterize the discussions on this site.
To correct my misunderstanding:
The support on Volock Conspiracy was not for being able to give money to terrorist front organizations. That is illegal and no one seemed to openly oppose that.
However, the controversy was over whether it is “protected speech” to publicly support the goals of terrorist organizations. The point of contention seemed to center around whether the government would have to prove that the speaker was working “with” the terrorist group as opposed to “in support of” the terroist group. (my summary of the argument only–may have missed the point–again).
Most commenters seemed to feel that restricting speech that supported the goals of terroists or the terrorists themselves would have a chilling effect on free speech of other types. Also mentioned was that an administration could put a domestic political party (Tea Party was mentioned) on the list of terrorist organizations to make it illegal (not if they have any sense, unless it is a real terroist organization like the old Communist Party).
What led me astray was a lot of talk about soliciting donations, “material” support (which can be immaterial apparently) and so on. That was really not the issue at hand
What I objected to (and still do–although I misread what they were supporting) is the idea that to protect the Tea Party, we must give Hamas, etc. the same protections. I think that once the campaigning stops and the shooting starts that our government should focus on protecting us and I don’t give a hoot about protecting the constitional rights of anyone who supports any group trying to kill Americans.
If someone wants to speak out saying America should bring the troops home because they oppose the war, that should be protected speech. If they say that they hope the Taliban kills lots of American soldiers, that should be a one-way ticket to jail (or Afganistan).
Anyway, just didn’t want to let my confusion on this discussion misrepresent to you what other people were saying.
PS to ZUCK: The ICRC issue is complex but I will try to simplify. If the ICRC provides medical care to civilians injured during fighting that is great. If they provide medical care to enemy soldiers (fighters, terrorists, etc) evacuated from the battlefield, that is defensible. However, training enemy combatents (who routinely violate any civilized persons standards of legal warfare) in field medicine is not, for me, acceptable. Therefore, any organization affliated with the ICRC is off my gift list.
June 23, 2010, 6:26 pmAlso, PlaidUnicorn: A more pertinent question is why do we elect idiots that would give money to Hamas in the first place.
Michael Ejercito says:
Strict scrutiny applies to First Amendment cases. The question is if a narrower law could achieve the same compelling government interests.
(Punishing treason is definitely a compelling government interest.)
Israel would not be subject to the law.
June 23, 2010, 8:28 pmPeter Gerdes says:
I don’t think there is a principled distinction.
The problem with the test that asks, “Do they intend to undermine US interests?” is that it’s either too broad or too narrow.
If the government can decide what the “US interest” happens to be then advocating for drug decriminalization by the US and the other American states could fall under the auspices. After all you really would, in that case, intend to undermine the efforts at interdiction, deterance, etc.. by convincing local governments not to participate perhaps as well as other countries in the hemisphere.
On the other hand if you use the test “Did they see themselves as undermining US interests” then even clear cut cases of treason might fail. After all if you really believe in the Nazi propaganda during WWII you might think the best thing for america to do was to be bloodied early and pull out of the war so they could join the inevitable nazi movement strong and unbowed.
June 23, 2010, 9:36 pmChris Travers says:
I think it’s worth noting that our expansive free speech protections in this country came specifically from the experience in this nation of going through the McCarthy era. My point in discussing the old Communist Party is that the arguments for restricting speech coordinated with them were eventually rejected on the theory that such was bad for democracy, so the line was drawn between urging someone to believe something and urging someone to do something. See United States v. Yates (which is still good law, btw).
This doctrine was further defined in a case involving advocacy of terrorism and genocide by a Klansman at a KKK rally, and the Supreme Court held, in Brandenburg v. Ohio, that unless the speech at issue was both intended and likely to cause IMMINENT lawless action, it was protected by the first amendment. Consequently Brandenburg’s advocacy of the idea that they should “kill the niggers” and that, as members of the KKK, “we intend to do our part” was protected political speech.
There’s no doubt that the KKK should be considered for this purpose a domestic terrorist organization, really only different than Hamas in the sense that they are based in the United States. So my question for you is whether you disagree with Yates (advocacy of Communist ideas including violent revolution is protected as long as the advocacy is aimed at belief instead of action) and Brandenburg (advocacy of terrorism and unlawful activity is protected provided that it’s not both intended and likely to cause imminent lawless action).
June 24, 2010, 11:12 amChris Travers says:
Garyp:
The only line that can be drawn between the tea party and Hamas is that Hamas is foreign-based. I’m not sure that’s a meaningful distinction though. Otherwise free speech depends on the speaker and the audience and I’m not sure that’s sound.
June 24, 2010, 11:22 amChris Travers says:
I donate to the ICRC and the Palestinian Red Crescent.
June 24, 2010, 11:24 amReaderY says:
Why doesn’t this fall under the general crime facilitating speech exception to the First Amendment? Why is speech which is treason different from speech which is solicitation to commit a crime?
Moreover, why doesn’t the crime facilitation nexus test concept apply here? In the crime facilitating speech context, one can generally advocate performing an act which is a crime but cannot counsel specific individuals to do it or tell them how to do it. It’s a distinction that’s made all the time.
Why wouldn’t there be a similar nexus test in distinguishing speaking against a war in general and treason?
Finally, one could argue the crime consists of dealing with the enemy and is therefore content-neutral. It doesn’t matter that ones dealings happen to consist of speech or what the speech says. The act of trafficking with the enemy is what’s criminalized. It doesn’t matter whether this trafficking consists of helping them throw bombs, or instructing them how to throw bombs, or instructing them how to advance themselves diplomatically such as how to apply to the UN for humanitarian aid. Criminalizing the trafficking itself is therefore content-neutral.
June 25, 2010, 8:24 amChris Travers says:
Can you define speech which is treason? I think that’s part of the problem. although I agree that the analogy is apt.
I think that’s what the Humanitarian Law Project asked for but the court refused to give. It might be in part a problem with drawing lines though. Which of these should be specifically unprotected when knowingly directed at foreign terrorist organizations:
1) Providing advice on resolving the conflict peacefully
2) Providing advice on how to stretch budgets in feeding people
3) Providing advice on fund raising
4) Providing advice on construction of smuggling tunnels.
The court ruled that none were protected. I’d like to think the first would be but the others wouldn’t be (because the others are likely to be to some extent an endorsement of the violent struggle itself, and a contributor to that).
That’s not what the actual statutes say, however. They forbid giving “expert advice” but exclude “religious material” and facts of common knowledge from the definition of what’s prohibited. So the statute cannot be argued to be content-neutral in any way.
June 25, 2010, 6:31 pmSCOTUS: Teaching Terrorists to Negotiate Peacefully = Abetting Terrorism : Lawyers, Guns & Money says:
[...] on the topic from those better versed in the law than I: from Opinio Juris, Legal Ethics Forum, and Volokh Conspiracy. Share and [...]
June 26, 2010, 11:24 pm