Man Charged With Relaying Hezbollah TV

[Volokh, Eugene]

	Mark:  How far would you take that?  I take it that few people
would have said that it would be better off if we were ruled from Berlin
and Tokyo, partly because this wasn't really something that anyone (even
the Germans and the Japanese) contemplated as an option.  What if,
somewhat more realistically, someone had said "I think we have no
business interfering with what the Asiatics are doing in Asia, or with
the latest phase of the centuries-long dominance games in Europe.  Give
the Philippine Islands to the Nipponese Empire; even give up Hawaii if
necessary.  The Japanese were right to resist our hegemony by attacking
us at Pearl Harbor, and we're wrong to be pursuing them, bombing Tokyo,
and killing their soldiers.  The Germans declared war on us because they
were honor-bound to do it -- what's the point of fighting them further?
Elect in 1944 someone who can grasp that we've been wrong all along, and
the Axis have been right."  Should that be punishable, too?  Is the
exception for all speech that suggests the enemy is right, or just for
the very narrow category of speech that suggests that we should
surrender our national independence?

	Eugene


Mark Scarberry writes:

	I think that one who argued in 1944 that we would be better off
if we were ruled from Berlin and Tokyo, and that citizens therefore
should not assist our war effort, would properly have been subject to
criminal sanction, without regard to any relationship such a person
might have had with the Axis powers. 
	 
	Putting that aside, however, I understood the context of this
thread to be the extent to which the Brandenburg rule applies (or how to
apply it), where speech advocates illegal conduct in support of those
who arguably are our enemies in what is arguably a war. I wonder whether
Eugene thinks the Constitution protects the advocacy during wartime of
illegal acts that would aid our enemies, so long as there is not an
imminent danger that the advocacy would produce the illegal conduct. For
example (to apply current First Amendment doctrine anachronistically),
during WWII would the First Amendment have protected the setting up of
after school Hitler Youth programs for elementary school students, who
would be taught that it was their duty to obey Hitler and fight against
the U.S. government once they reached the age of 18? My answer of course
is "no." Would it matter that those who wished to set up such schools
had never had any contact with any German agents and had come
independently to their convictions? I don't think so.