Adam Gadahn, who has become a propagandist for al-Qaeda, is being indicted for treason (as well as for providing material support for terrorist organizations). News accounts that I've heard suggests that the indictment is based precisely on what he's said, not on any physical assistance that he's provided. If he acted with the intent of helping al-Qaeda in its war against us, and if his overt acts can be proven with the testimony of two witnesses (or an in-court confession), then his actions would be treason. But what about the First Amendment?

Interestingly, the closest analogy here seems to be the post-World War II prosecutions of Axis Sally and Tokyo Rose, who were U.S. citizens who acted as propagandists for the Nazis and the Japanese. (As I understand it, Tokyo Rose was eventually exonerated on the grounds that she acted under duress, but that's not important to the legal analysis here.) Consider 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.

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 knows that it's likely to aid the enemy. (Not all such speech is punishable under treason law, which requires a purpose of helping the enemy, but perhaps the speech could be punished under some other statute.)

   I think this would be an awful test, because it would punish a lot of important, valuable, and eminently legitimate speech that criticizes the war. As I've argued here, "During war as during peace, Americans have a right and responsibility to evaluate their government's actions, and decide whether the actions — or the administration — need changing. To make these decisions we need to hear various views on whether the war is going well, whether we're morally in the right in our actions, and so on. An American during the Vietnam War, for instance, should have had the right to argue to his fellow citizens that the war was unwinnable, that the U.S. should pull out, and that voters should support an antiwar candidate. His arguments and others like his might well have helped the enemy, if they weakened U.S. resolve, made it more likely that the U.S. would indeed withdraw, or emboldened the Viet Cong." Notheless, his speech should have been protected.

2. Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."

   I think this too is probably too broad. Perhaps the speaker's intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.

3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. 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.

4. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. As I've written here, I think this is probably the best test, and it would cover Gadahn — but I'm not positive it.

5. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view. This test would probably cover Gadahn as well, given that it sounds like al-Qaeda is likely providing his room and board, such as it is, and on a pretty full-time basis.

6. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. 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. Tom Bell also has a post on the Gadahn case today.

I'm at a conference starting a minute from now, and won't be blogging until a good deal later, but these are some tentative thoughts on the subject for now.

in my op-ed in today's L.A. Times. Incidentally, I'm pretty happy both with the op-ed and with my original post on the subject; but comparing the two, I think, helps show the differences in the genres, and the strengths and weaknesses of each. My blog post would never have been published as an op-ed (likely quite rightly, given the generalist audience of the L.A. Times). And if I had published the op-ed as a blog post, I think it would have been less interesting and helpful than the earlier post, which went into more detail on the First Amendment issue, and which focused more on presenting various possible legal rules rather than just quickly saying which one I thought was right.