Speech during wartime

[Volokh, Eugene]

	Mark:  I'm a bit puzzled.  You write "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."  But then you write "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."  So say that someone
thinks the enemy is in the right, and deserves to win; and he advocates
that the government make peace, foreseeing (and even intending) that the
speech would make others less enthusiastic about the war.  Protected
under principle one?  Or unprotected under principle two?

	More broadly, say that you are trying to elect a candidate
who'll stop the war, because you think we're in the wrong and the enemy
is in the right.  It seems to me that any such campaign must be allowed,
if we are to have a democracy during wartime rather than suspending
(formally or de facto) elections and real election campaigns.  Under
your approach, what would you be free to say -- given that your
statements are indeed intended to help the enemy, as well as to elect a
candidate (in fact, they're intended to help the enemy by electing a
candidate) -- and what would it be permissible for the government to
stop you from saying?

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Scarberry, Mark
> Sent: Monday, August 28, 2006 5:12 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Man Charged With Relaying Hezbollah TV
> 
> 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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