Treasonous Speech?

Eugene Volokh considers treason and speech. He offers several candidate First Amendment rules:

1. Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. . . .


2. Speech is unprotected whenever the speaker has the purpose of aiding the enemy. . . .


3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. . . .


4. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. . . .


5. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.


6. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. . . .

I addressed Bell's view (Volokh's option 5) several months ago:

If it's treason, it's treason. An unpaid traitor can do just as much harm to the nation as can a paid traitor.

It would be better to do away with the law of treasonous expression altogether than to draw an arbitrary line between paid and unpaid traitors. If a person's treachery goes no further than expressions of hatred for America or sympathy with America's enemies, let that person suffer the consequences in the forum of public opinion.

I prefer Volokh's option 2, an option that Volokh doesn't like because

prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime.

I suppose. But presumably an intention to aid the enemy would have to be proven in a court of law. I doubt very much that an unsubstantiated intention would survive an appeal. Why not give it a try and see how the Supreme Court rules on the issue -- as surely it would be asked to do.

Just to be clear about it, I'm not suggesting charges of treason against those who sympathize with the enemy. The friend of our enemy is not our friend, but neither is he or she necessarily our enemy. Just don't turn your back.

Related posts:

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
The Illogic of Knee-Jerk Privacy Adocates (10/06/04)
Treasonous Blogging? (03/05/05)
Absolutism (03/25/05)
Shall We All Hang Separately? (08/13/05)
Foxhole Rats (08/14/05)