Man Charged With Relaying Hezbollah TV

[Scarberry, Mark]

Eugene,

I've probably already gone further than would be prudent on an issue on
which I speak much more as an interested citizen than as one who has any
special insight into constitutional doctrine. Nevertheless, when a
society makes a decision to engage in war, citizens can be expected at
the very least not to take actions--including the making of
speeches--intended to help the enemy. Thus speech during wartime that is
intended to discourage citizens from aiding the war effort because the
speaker wants us to lose the war should not, in my view, be protected.
That would cover my hypo of a speaker who thinks we would be better off
if ruled from Berlin or Tokyo. (Note that people on the West Coast
expected invasion after the attack on Pearl Harbor; at least my parents,
who had not yet met but who both lived in California, expected it.)
Perhaps it would make sense, even during a shooting war, to limit my
approach by requiring that there be some realistic prospect that the
speech would in fact help the enemy. (I recognize that even then the
standard would be looser than Brandenburg, which I think cannot be
applied with full force during a shooting war.)

On the other hand, speech during wartime that advocates that the
government take a different approach to the war (either by fighting it
differently or by making peace) should be protected, even though it is
foreseeable (and perhaps even intended) that the speech would make
others less enthusiastic about the war. And speech directed toward
electing officials who would take a different approach to the war
certainly should be protected. Perhaps someone on the list can help us
to learn something relevant from the history of how the Copperheads (if
that's the right term) were treated during the Civil War. (And wouldn't
Lincoln likely have lost the election of 1864 to a pro-peace candidate
but for the victory at Gettysburg?)

I do think that context matters. If your hypothetical statement ("I
think we have no business ...") were made during WWII outside a military
recruiting office with the intent of persuading young people not to
enlist in the military, then I don't think it should have been within
the First Amendment's protection. But if the statement were made to
support the candidacy of someone running for President or Congress who
wanted us to make peace with the Axis powers, then it should have been
protected, even though despicable.

Mark

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 25, 2006 3:41 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Man Charged With Relaying Hezbollah TV

	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.

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