Saturday, March 05, 2005

Treasonous Blogging?

Tom W. Bell of Agoraphilia posts about and links to an article he has submitted to several law reviews. The title is of the article is "Treason, Technology, and Freedom of Expression." Here are some excerpts of the abstract and concluding section:
The power to punish treason against the U.S. conflicts with the First Amendment freedoms of speech and of the press. Far from a question of mere theory, that conflict threatens to chill public dissent to the War on Terrorism....After World War II, the United States won several prosecutions against citizens who had engaged in propaganda on behalf of the Axis powers. Today, critics of the War on Terrorism likewise face accusations of treason. Under the law of treasonous expression developed following World War II, those accusations could credibly support prosecutions. Any such prosecutions could win convictions, moreover, unless courts narrow the law of treasonous expression to satisfy the First Amendment....

In terms of abstract doctrine, the law of treason condemns anyone who owes allegiance to the U.S., who adheres to U.S. enemies, and who gives them aid and comfort by an overt act to which two witnesses testify. As courts have applied that doctrine, however, it threatens any citizen or resident of the U.S. who publicly expresses disloyal sentiments. The Internet has made it cheap, easy, and dangerous to publish such sentiments....Even if no prosecutions for treason arise, the alarmingly broad yet ill-defined reach of the law of treason threatens to unconstitutionally chill innocent dissent....

As courts have interpreted it, the law of treason allows for the punishment of an indeterminate but wide range of disloyal public expressions that help enemies of the U.S. That interpretation both subverts the original meaning of the constitution’s treason clause and violates the strict scrutiny test applied to content-based restrictions on expression. To save the law from unconstitutionality, courts should in cases of treasonous expression interpret the “adhering to [U.S.] enemies” element of treason as nothing broader than “being employed by enemies of the U.S.” Perhaps courts should demand a still less restrictive variation on the law of treason. Perhaps they should do away with the law of treasonous expression altogether. At the least, though, they should limit liability for treasonous expression to defendants employed by enemies of the U.S. Anything broader than that would, by wounding our First Amendment rights, do far more to harm the U.S. than disloyal expressions would.
I disagree with the compromise position Bell offers in the final sentence. 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.

We bloggers are already facing enough trouble, given the strong possibility that our freedom of expression may be throttled by the strict application of the McCain-Feingold Act. The last thing that we (bloggers) need is an inquisition into our views about the War on Terrorism.

I do detest the extremists of the left and right who portray America as the villain of the piece. But I defend their right to do so -- as long as they aren't doing it on my dime.