Man Charged With Relaying Hezbollah TV

[Bob Sheridan]

This is just a guess, but my guess is that cases such as Schenk, Abrams, 
and Brandenburg, as well as the Japanese Internment cases, are 
barometers of the level of fear and prejudice in the country at the time 
the decision is issued.  Given the readiness in some quarters, at least, 
to succumb to panic following events such as Pearl Harbor and 9-11, and 
engage in worst-fear and slipperiest-slope thinking when paranoia sets 
in, I also doubt that Brandenburg is going to be the last word.  New 
causes of new paranoia are apt to be deemed changes in circumstance, 
hence readily distinguishable from 'old' case-law fitting old circumstances.

My suspicion about Brandenburg is that it was decided mostly by white 
justices regarding Klan speech at a Klan rally.  No paranoia there.  No 
crosses about to be burned on the justices' lawns.  Much easier to take 
the philosophical high road, than, say, soon after Pearl Harbor, when 
the West Coast was panicked.  Endo, the last of the three  (Korematsu, 
Hirabayashi) was decided after the turn in fortune in the Pacific. Less 
fear, better law.

Bob S.
sfls

Scarberry, Mark wrote:
> I reviewed Schenck and Abrams before composing my latest post; note 
> that Holmes agreed with the affirmance of the conviction in Schenck 
> (though not in Abrams). Of course Brandenburg is taken as the latest 
> word on this topic, but I wonder whether it is, since we were not in a 
> "shooting war" when Brandenburg was decided (and it involved internal 
> matters---the KKK---rather than a foreign war situation).
>  
> One might question whether the Russian adventure in Abrams qualified 
> as a war; was there even an authorization for use of force? (Perhaps 
> it was ancillary to WWI.)
>  
> And in response to Mark Graber, my comments were not intended to 
> indicate that we presently were in the kind of shooting war that my 
> (and Eugene's) WWII hypos relied on. Of course there are the AUMFs...
>  
>  
> Mark Scarberry
> Pepperdine
>
> ------------------------------------------------------------------------
> *From:* Mark Tushnet [mailto:mtushnet at law.harvard.edu]
> *Sent:* Mon 8/28/2006 6:51 PM
> *To:* Scarberry, Mark
> *Cc:* conlawprof at lists.ucla.edu
> *Subject:* RE: Man Charged With Relaying Hezbollah TV
>
> I'd simply note that this -- "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" -- describes the 
> facts of
> Schenck and Abrams.  Schenck involved the distribution of 
> anti-conscription
> pamphlets to young men who were in the middle of the conscription 
> process, and
> Schenck's arrest took place on August 28, 1917.  Maybe Schenck didn't 
> "want"
> the United States to "lose the war," but Abrams certainly did.  Abrams 
> was
> arrested in August 1918, but the relevant "shooting war" was not World 
> War I
> but the then on-going anti-Soviet Allied campaign.  I take it that the 
> Court's
> decisions in those cases are now regarded as no longer stating the law.
> -- 
> Mark Tushnet
> William Nelson Cromwell Professor of Law
> Harvard Law School
> Areeda 223
> Cambridge, MA  02138
> phone:  617-496-4451 (office)
>         202-291-6352 (home)
>         202-374-9571 (mobile)
>         617-496-4866 (fax)
>
>
> Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:
>
> > 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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> > _______________________________________________
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>
> ------------------------------------------------------------------------
>
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