Man Charged With Relaying Hezbollah TV

[Bernard Bell]

	This is a belated reply to Gene's email below.  I have had a
chance to read the portions of Gillars v. U.S. dealing with the
sufficiency of the evidence for conviction and the First Amendment
defense.  (Gillars was an American citizen who broadcast for the German
Broadcasting Company during World War II..)  Gillars's conduct goes far
beyond what we would currently consider mere advocacy, and indeed the
indictment characterized her conduct not just as advocacy but as
"psychological warfare."  The particular act that served as the basis
for defendant's conspiracy conviction was broadcasting to troops about
to participate in the Normandy invasion and their loved ones a
dramatization seeking to heighten the soldiers' fear of death and their
loved ones' fears about the soldiers' fates.  The broadcast took place
within a month of the invasion, and for all defendant knew, could have
been within days or hours of the planned invasion.  
	Moreover, the Court relied on the broader background to uphold
the conviction.  While some of that background involved advocacy in
coordination with other actions of the German Foreign Ministry, the
Court noted prominently Gillars's conduct involving American prisoners
of war.  Gillars personally went to prison camps, handed out cigarettes
to prisoners, got POWs to talk by falsely telling them that the
statements were for delivery to the Red Cross.  And after the tapes had
been edited and re-recorded, no doubt to distort the statements, Gillars
had broadcast the edited and re-recorded statements to American troops
and the American public.  Seeking statements from prisoners of war is
inherently coercive.  So Gillars coerced, induced, and deceived American
POW's into providing statements that would be distorted in the editing
process for purposes of broadcast to American troops and American
citizens.  In my view, such a course of action goes far beyond mere
advocacy.  It certainly goes beyond what we have been hypothesizing that
Iqbal (the current defendant) has done, namely re-transmitting
broadcasts by a foreign organization aimed primarily at Muslims in
foreign nations.  (Note the broadcasts Gillars worked on were not for
German audiences, but were designed specifically to be broadcast to
foreign audiences, most notably those in the United States.)  
	With respect to Iqbal, there is no attempt to heighten fears of
troops preparing for a deadly mission that will be taking place in the
very near term and no personal involvement in abuse and manipulation of
American POW's for propaganda purposes.  In short, the Gillars v. U.S.
does not, in my view, establish that paid advocacy on behalf of a
hostile foreign power, even during war time is beyond the range of First
Amendment protection (and Iqbal does not appear to have been accused of
even that).
	But should it be?  I grant you that from the speaker's
perspective (as opposed to the perspectives of listeners who might want
to hear the views of our enemies), there is not a strong case for First
Amendment protection.  Speech motived not by ones own views, but paid
for by an organization that has no First Amendment rights because it is
not a member of the polity, and in fact is a member of a hostile polity,
certainly at best lies at the fringes of the speech we would want to
accord individuals a right to engage in.  But if the harm is that the
speech may persuade others that the course on which our government is
embarked is wrong or that people who disagree will be offended that such
views are available to others within the United States, there seems to
be little justification for prohibiting such speech.  In any event,
prohibiting speech on such a justification seems to be in tension with
Brandenberg.  So you may be right that the speaker's interest in
engaging in speech paid for by a hostile foreign power does not justify
First Amendment protection, but I don't think that the issue is
clearcut.  And in any event, the interest of American citizens in the
audience would, it seem to me, bring this speech into the protected
category.  (Remember, I am positing that the speech is labeled as being
on behalf of the foreign entity that is paying for it, in other words,
there is no deception as to the real source of the speech.)
	I expect any person who engages in broadcasting at the direction
of a hostile power would almost invariably engage in other acts, such as
declaring allegiance to a foreign power, joining the government of a
foreign power, or accepting payment from a foreign power, that are quite
likely sufficient for a conviction for treason and would not be
protected by the First Amendment.

Regards.

Bernie

Bernard W. Bell
Associate Dean for Academic Affairs & Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu


>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 08/25/06 3:50 PM >>>
	The theory in the Axis Sally case, which discussed the First
Amendment issue in the most detail (see Gillars v. United States, 182
F.2d 962 (D.C. Cir.1950)), wasn't incitement of imminent lawless
action.
Under today's legal rules, which I assume are set forth by
Brandenburg,
the broadcasts would almost certainly qualify at most as advocacy of
action at some undefined time in the future (not incitement, as per
Hess
v. Indiana) rather than as advocacy of imminent desertion right away.
Nor is it even clear that the government's concern was desertion as
such
-- it was a loss of morale generally, which can hurt the war-fighting
effort even if the soldiers don't desert.  And I don't recall any
evidence that Axis Sally offered any tangible inducement to desert.

	So if they're punishable, it seems to me that they're
punishable
simply on the theory that working with the enemy -- they really were
Nazi employees -- to try to undermine soldiers' morale through
propaganda broadcasts (in order to help the enemy) is treason, much
like
working with the enemy to improve the enemy's munitions.  Can it
really
be that such behavior is constitutionally protected?

	Eugene

> -----Original Message-----
> From: Bernard Bell [mailto:bbell at kinoy.rutgers.edu] 
> Sent: Friday, August 25, 2006 12:45 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu 
> Subject: RE: Man Charged With Relaying Hezbollah TV
> 
> 
>   With some trepidation, I wonder about Gene's second 
> praragraph.  The major problem for me with speech an American 
> citizen makes that merely amounts to advocacy at the 
> direction of foreign group or power is disguising the true 
> source of the speech.  Thus, there should perhaps not be 
> constitutional protection for an American citizen's speech 
> when s/he fails to disclose that it is at the direction of a 
> foreign power. 
> With such a disclosure, listeners or readers in the United 
> States can decide for themselves whether to give any credance 
> to it.  If there is such a disclosure, I'm inclined to think 
> the speech by the American citizens, even at the direction of 
> a foreign country, is constitutionally-protected.
>    I'm not familiar with the facts of the Tokyo Rose and Axis 
> Sally prosecutions, but were their convictions solely on the 
> basis of general advocacy?  Or was it critical that they were 
> advocating to soldiers in the field of war the imminent 
> unlawful action of desertion or surrender in defiance of 
> superior officers' orders, and was there a prospect that such 
> unlawful desertion of surrender would result?  (Though, of course,
> the Brandenberg test was not extant then.)    (Indeed, did Tokyo
Rose
> and Axis Sally not only advocate but also offer inducements 
> to those who would desert, which surely takes the two even 
> further out of the protection of the Free Speech Clause.)  I 
> would think that treason would require more than general 
> advocacy against one's government at the direction of a 
> foreign power when that advocacy is directed to the general public.
> 
> Regards,
> 
> Bernie Bell
> 
> Bernard W. Bell
> Associate Dean for Academic Affairs & Faculty Professor & 
> Herbert Hannoch Scholar Rutgers Law School-Newark
> 123 Washington Street
> Newark, NJ 07102
> (973) 353-5464 (voice)
> (973) 353-1445 (fax)
> bbell at kinoy.rutgers.edu 
> 
> 
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 08/25/06 12:54 PM >>>
> 	A few thoughts:
> 
> 	1.  That X is quoting Y's speech can't by itself strip 
> X of constitutional protection on the grounds that somehow 
> only Y is speaking, or X is merely Y's agent.  Lots of fully 
> protected speech is quotations of others' work -- consider 
> people reading publicly from the Bible, or republishing The 
> Communist Manifesto, The Satanic Verses, the Koran, and so 
> on.  (Harper & Row and Eldred suggest otherwise, in 
> explaining why copyright law is constitutional, but I think 
> those suggestions are mistaken, and shouldn't be extended to 
> other cases even if the results in Harper & Row and Eldred 
> are right; see generally 
> http://www.law.ucla.edu/volokh/speechip.pdf, PDF pages 
> 29-31.)  Nor can it matter whether the speech is written by a 
> foreign author, or has come recently from a foreign country.  
> American speakers' free speech rights include the right to 
> communicate it.
> 
> 	2.  On the other hand, if X is acting under Y's 
> control, or with some elaborate prearrangement, the matter 
> may well be different.  I have in mind here the Tokyo Rose / 
> Axis Sally cases (let's set aside the factual controversies 
> about, for instance, whether Tokyo Rose should have been 
> acquitted because she was acting under duress; as I recall, 
> she was ultimately pardoned on some such grounds, but the 
> legal issue remains, and the facts of the Axis Sally case are 
> pretty clean though less familiar).  If an American in the 
> U.S. tells people that the war is hopeless, the invasion of 
> Europe will cause 70%-90% of the invading soldiers to be 
> killed or crippled, we're only sending our boys to die for 
> nothing, and the like, I take it that this should be fully 
> protected (and would be under modern doctrine).  But I think 
> the courts were right to rule that when Axis Sally broadcast 
> this under the control of the Nazis from Germany, that was 
> punishable as treason, on the theory that it was aimed at 
> helping the enemy by diminishing soldier morale.  
> 
> 	The distinction, I think, is probably not the 
> geographical source of the broadcasts, or whether they're 
> mostly targeted as soldiers, but the degree to which the 
> speaker is in league with (or under the supervision of) the 
> enemy force.  Likewise, I think that if someone is actually 
> acting under Hezbollah's orders (even though we're not in a 
> war with Hezbollah right now), such speech could be 
> restrictable (setting aside Michael Froomkin's arguments 
> about whether current statutes actually do try to restrict it).
> 
> 	3.  What about American listeners' rights, see Lamont?  
> I'm not sure where they fit; on the one hand, the listeners' 
> rights argument seems quite consistent with free speech 
> theory -- foreign speech is certainly useful for Americans to 
> consider in exercising their rights to self-government, or in 
> engaging in the search for truth -- yet on the other hand it 
> seems to me unlikely that listeners' rights should protect 
> the Axis Sally type speech.
> 
> 	4.  So if #1 and #2 are right, the constitutional 
> question is how much of a "conspiracy" with the bad guys is 
> necessary to render a redistributor of foreign speech 
> punishable.  Yet if in this case the person simply got the 
> Hezbollah videos, with no further prearrangement with 
> Hezbollah (and no payment to Hezbollah, which might raise 
> some other questions, compare O'Brien with Meyer v. Grant), 
> then I can't see how he could constitutionally be punished.  
> Or am I missing something here?
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bernard
Bell
> > Sent: Friday, August 25, 2006 9:08 AM
> > To: DavidEBernstein at aol.com; mtushnet at law.harvard.edu 
> > Cc: conlawprof at lists.ucla.edu 
> > Subject: Re: Man Charged With Relaying Hezbollah TV
> > 
> > 
> > To me, the existence of any Free Speech rights of Hezbollah is not

> > particularly relevant to whether the government can ban an American

> > within the U.S. from retransmitting a Hezbollah broadcast 
> to willing 
> > listeners within the United States.  The prosecution, if 
> based solely 
> > on retransmission, should founder on the Free Speech Clause 
> right of 
> > American citizens to receive ideas.  Such a right of listeners, as

> > opposed to speakers, has been recognized as a right implicit in the

> > Free Speech Clause.  And while the right has not been the basis of

> > very many rulings and is often conceived of as dependent on some 
> > speaker having a First Amendment right to convey ideas, I 
> have argued 
> > that it makes sense to untether the right to receive 
> information from 
> > the right to speak precisely because the right to receive 
> information 
> > should be protected even if no speaker who has a First 
> Amendment right 
> > to convey the ideas.
> > I used this argument in the context of analyzing the 
> constitutionality 
> > of libraries blocking access to Internet cites by filtering 
> software.
> > And I think it applies here as well.  An excerpt from my argument 
> > about the right to receive information is below.
> > The full article is Bernard W. Bell, Filth, Filtering and the First

> > Amendment, etc, 53 Fed. Comm.
> > L.J. 191 (2001).
> >    And of course, in this situation, I think the person 
> retransmitting 
> > the signal has a First Amendment right to "speak" in his own
right.
> > 
> > Regards,
> > 
> > Bernard Bell
> > h.  But I think the courts were right
> > Bernard W. Bell
> > Associate Dean for Academic Affairs & Faculty Professor & Herbert 
> > Hannoch Scholar Rutgers Law School-Newark
> > 123 Washington Street
> > Newark, NJ 07102
> > (973) 353-5464 (voice)
> > (973) 353-1445 (fax)
> > bbell at kinoy.rutgers.edu 
> > 
> > 
> > Public forum doctrine might ultimately prove useful in analyzing 
> > public libraries' powers to employ filtering software on their 
> > computers, but the doctrine cannot be applied to public 
> libraries in 
> > the conventional way.
> > Conventional forum analysis focuses on the interests of the 
> speakers. 
> > [FN66]  *205 Groups that wish to disseminate their views to their 
> > fellow citizens need parks, streets, and the like to reach 
> the general 
> > public at modest cost. [FN67] The audience for such 
> demonstrations, on 
> > the other hand, might just as soon wish to use parks and streets 
> > undisturbed.
> > [FN68] Indeed, law enforcement officials have a constitutional 
> > obligation to protect a speaker from a hostile crowd, even if the 
> > officers could keep the peace with substantially less 
> effort and risk 
> > by preventing the speaker from continuing. [FN69] Virtually every 
> > Supreme Court public forum case has been brought by speakers, not 
> > those who seek to receive ideas. Even cases in which the 
> Supreme Court 
> > has ultimately characterized the government property as a 
> designated 
> > public forum or a non-public forum have been initiated by speakers,

> > and the Court's analysis has focused on the speakers' interests.
> > 
> >   Public libraries, however, do not primarily exist to assist those

> > who wish to express their ideas; rather, public libraries have been

> > established to facilitate citizens'
> > access to ideas. [FN70] The person most harmed when a 
> library bans a 
> > book is not the author of the book, but the library patron 
> who wishes 
> > to read it. Thus, any complaint by a Web site owner that 
> his interests 
> > have been harmed because library blockage of his Web site prevented

> > him from communicating with patrons presents a fairly weak First 
> > Amendment claim. The Web site owner's claim is surely much less 
> > substantial than a patron's claim that her attempt to 
> access the site 
> > has been frustrated.
> > 
> >   *206 For example, patrons of the Loudoun Public Library 
> had a much 
> > stronger First Amendment claim against the library for 
> using blocking 
> > software than did the Web site owners whose sites were allegedly 
> > blocked by the filters. [FN71] Indeed, the Web site owners' 
> position 
> > did not differ materially from that of the charities complaining of

> > the exclusion from the Combined Federal Campaign in 
> Cornelius. [FN72] 
> > Public libraries, like the Combined Federal Campaign, are 
> non-public 
> > fora, at least from the speaker's perspective. Librarians should be

> > free to provide the content they believe is in the best interest of

> > their patrons without the constraint of considering the 
> interests of 
> > the creators of expressive materials.
> > 
> >   The somewhat odd nature of the analysis in both Kreimer 
> and AFSCME 
> > Local 2477 v. Billington, [FN73] a second case involving a patron's

> > claim of a right of access to a government library, stems from the

> > failure to recognize that claims of people seeking 
> information might 
> > differ from those of speakers, and thus might require a different 
> > analysis. In Kreimer, the court noted that the public 
> library was the 
> > quintessential locus for the exercise of the right to receive 
> > information, suggesting a presumption that public libraries should

> > qualify as traditional public fora. [FN74] The court then 
> retreated, 
> > deciding that the public library could not be considered a 
> traditional 
> > public forum because allowing library patrons to engage in 
> expressive 
> > activities, such as addressing their fellow patrons, would 
> disrupt the 
> > library.
> > [FN75] Kreimer, however, did not wish to present a lecture to his 
> > fellow patrons; he merely desired access to the 
> quintessential place 
> > to receive information so that he could read. The question 
> was whether 
> > he could do so given his deleterious hygiene. In AFSCME Local 2477,

> > the
> > *207 court appeared to conclude that the Library of Congress was a

> > non-public forum because it was not open for expressive activity. 
> > [FN76] Again, this conclusion would make sense if a patron 
> wanted to 
> > use the library to give a speech or distribute leaflets. 
> If, however, 
> > a patron merely desires access to obtain information, the sounder 
> > conclusion would be that the public library is at least a limited 
> > public forum (and perhaps even a traditional public forum for 
> > receiving information).
> > 
> >   We must at least consider whether the tripartite analysis 
> the Court 
> > has employed when the concerns of speakers predominate remains 
> > appropriate when the needs of audiences assume paramount 
> importance. 
> > The Supreme Court has recognized a citizen's interest in receiving

> > ideas as a right protected by the First Amendment, [FN77] 
> but only in 
> > a few relatively unusual cases, [FN78] and often merely as 
> a corollary 
> > to the rights of speakers. [FN79] As the Court has said on 
> occasion, 
> > "The dissemination of ideas can accomplish nothing if otherwise 
> > willing addressees are not free to receive and consider 
> them. It would 
> > be a barren marketplace of ideas that had only sellers and 
> no buyers." 
> > [FN80] This has led to the view that if no potential speaker has a

> > First Amendment right, then no potential listener can have a 
> > corresponding First Amendment right. Justice Powell's 
> dissent in Board 
> > of Education v.
> > Pico [FN81] exemplifies this view. In Pico, the Court faced the 
> > question of whether a public secondary school violated its 
> students' 
> > rights when it removed certain books from the school 
> library. Justice 
> > Powell argued that student patrons of school libraries 
> could have no 
> > First Amendment right to prevent school authorities from removing 
> > library books, because authors and publishers had no corresponding

> > First Amendment right to demand that books remain on school library

> > shelves. [FN82]
> > 
> >   *208 There is a place, however, for a focus on citizens 
> as listeners 
> > as well as speakers. As James Madison eloquently observed, and the

> > Court has sometimes acknowledged: "A popular Government, without 
> > popular information, or the means of acquiring it, is but a 
> Prologue 
> > to a Farce or a Tragedy; or, perhaps both." [FN83] Indeed, on 
> > occasion, speakers and listeners might have somewhat incongruent 
> > interests. With regard to regulation of the electromagnetic 
> spectrum, 
> > for example, the Supreme Court has recognized the potential 
> conflict 
> > between listeners and speakers, and declared the listener's 
> interests 
> > paramount. The Court has thus allowed the federal 
> government to create 
> > and enforce obligations on broadcasters that subordinate speakers'

> > customary power to decide the content of their speech to 
> the public's 
> > broader need for "suitable access to social, political, esthetic, 
> > moral, and other ideas and experiences." [FN84] Such 
> conflicts between 
> > speakers and listeners are particularly likely to arise 
> when there is 
> > more than one speaker involved in the communication, as in 
> the library 
> > and broadcast situations. In such scenarios, a secondary 
> speaker (like 
> > a
> > library) selects from among a group of primary speakers (like
> > authors) who wish to communicate with the secondary speaker's 
> > audience.
> > 
> >   Thus, using conventional public forum analysis in the library 
> > setting presents difficulty; a "listener" perspective rather than a

> > "speaker"
> > perspective is required.
> > 
> > 
> > >>> <DavidEBernstein at aol.com> 08/25/06 11:05 AM >>>
> > We don't have a case here of an American adopting a foreign 
> > government's view, we have a case of an American directly 
> > restransmitting the foreign "government's" 
> propaganda/speech not just 
> > verbatim, but in its original form.  The foreign government 
> certainly 
> > should have no First Amendment rights in this regard, so again, the

> > question is, do we see this as the American citizen's speech, or as

> > Hezbollah's speech?  I don't think the answer is obvious, 
> but if it is 
> > ultimately construed as Hezbollah's speech, I don't think the 
> > government has to allow it.  Analogously, is there any 
> reason the U.S.
> > government couldn't have banned the Soviet Union from distributing

> > Pravda in the U.S. during the Cold War?
> > 
> > In a message dated 8/25/2006 10:56:58 AM Eastern Standard Time, 
> > mtushnet at law.harvard.edu writes:
> > I don't get David's argument, unless the fact that a U.S. 
> > citizen has "adopted"
> > for whatever reasons -- ideological agreement, pay, whatever
> > -- the foreign entity's views drops out of the analysis. 
> > _______________________________________________
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