Eugene Volokh, writing in the wake of the Supreme Court’s decision in Holder v. Humanitarian Aid Project, digs into his archive for a list of five alternative ways of defining treasonous speech. The alternatives range from restrictive (#1) to lenient (#5).
My archive includes a five-year-old post in which I comment on Volokh’s five alternatives. In that post, I state a preference for this option:
2. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. This, though, would be an odd distinction in U.S. constitutional law, given that speech is routinely protected despite being done for money. Most writers, filmmakers, journalists, and other speakers are paid for their speech.
Now, five years later, I lean toward Volokh’s least lenient alternative:
1. Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there’s some evidence that the speech is indeed likely to provide some at least modest aid). That seemed to be the court’s view in Gillars: “The First Amendment does not protect one from accountability for words as such. It depends upon their use. It protects the free expression of thought and belief as a part of the liberty of the individual as a human personality. But words which reasonably viewed constitute acts in furtherance of a program of an enemy to which the speaker adheres and to which he gives aid with intent to betray his own country, are not rid of criminal character merely because they are words.” This exception would justify punishing any speech that falls within the statutory and constitutional definition of “treason.”
How can I be so hard on speech that aids a foreign enemy and yet so supportive of free speech in the context of domestic affairs (e.g., see this post)? The terms “foreign enemy” and “domestic affairs” ought to be a clue. As I say here, in the context of illegal immigration, “the United States exists primarily for the purpose of protecting its citizens and their liberty rights.”
We must not give foreign enemies the same rights as American citizens. If we do, we run the grave risk of losing our own rights.