When Does Speech Become Treason?

Winter 2005 -- When Michael Moore’s twisted anti-Bush jeremiad, Fahrenheit 9/11, was released, many Republicans, conservatives, and generally decent people had strong negative reactions. There were calls by some that Moore be prosecuted for treason, the drumbeat amplifying and echoing as it careened through the World of the Right. The reaction was understandable from an emotional perspective, but made no sense otherwise. Moore’s film was an exercise, albeit a thoroughly dishonest one, in protected speech. While “pure speech” (i.e., speech not combined with action) can mutate into treason, even the worst political speech, standing alone, does not come close to constituting treason.

To answer the question I’ve posited—When does speech become treason?—it is necessary to understand something about the history of speech in the United States.

Of all our constitutional guarantees, the First Amendment’s protection of speech is probably the best known, but the least understood. Contrary to popular belief, the speech guarantee was never intended to allow, nor has it ever allowed, absolutely free speech in America.

The Massachusetts constitution of 1780, adopted only four years after the Declaration of Independence, contained a free-speech guarantee. Yet between 1799 and 1803 there were at least three political libel convictions in that commonwealth. The Pennsylvania and Delaware constitutions of 1790 and 1792, respectively, enacted at virtually the same time as the First Amendment (1791), expressly imposed liability for “abuse” of free speech. In the same vein, Virginia—home of Washington, Jefferson, Madison, Patrick Henry, and John Marshall—enacted a law in 1792 dealing with the “abusive” exercise of speech.

Jefferson—author of the Declaration of Independence and third president of the United States—was not a free-speech absolutist. When, in a letter to Abigail Adams, he condemned the notorious Sedition Act of 1798—which punished certain political speech and actually sent not a few anti-Federalist editors to jail—Jefferson’s opposition was based on a “states’ rights” position, not on any belief in an unconditional right of free speech. On the contrary, he contended that “[t]he First Amendment…reflected a limitation upon Federal power, leaving the right [sic] to enforce restrictions on speech to the States.” (Emphasis added.)

As to the states, in 1803 Jefferson wrote to the governor of Pennsylvania recommending that “a few prosecutions of the most prominent [Federalist editor] offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like a persecution; but a selected one.”

Michael Moore’s Fahrenheit 9/11, was an exercise in protected speech.

Two hundred years later, oppressive governmental attitudes toward speech had not changed much. During World War I, an antiwar activist named Schenck distributed a handbill. One side claimed that the Conscription Act constituted slavery and involuntary servitude in violation of the Thirteenth Amendment. On the other side there was more of the same, including a paraphrase of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”).

Schenck and others were indicted for conspiring to violate the Espionage Act by causing insubordination and obstructing recruitment. They were not indicted for treason. Their defense was the First Amendment. They were found guilty, and their convictions were unanimously upheld by the Supreme Court. Justice Holmes famously wrote that “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight . . . .” It is noteworthy that even though Holmes, and his eight Supreme Court colleagues, believed that war justified suspension of free speech in certain contexts, nowhere in the Court’s opinion is there even a hint that Schenck could have been charged with treason.

The Schenck case was important not only because it ruled that during a war even pure speech could be suppressed for the “common good,” but because the decision became the foundation for the Court’s infamous “Smith Act” decision three decades later.

It is an impossible stretch, logically and constitutionally, to attempt to punish speech with indictment and conviction for treason.

In that case, members of the Communist Party of the United States were indicted, not for having committed violent acts, but for having conspired (i.e., agreed): “(1) to organize as the Communist Party of the United States of America a society . . . of persons who . . . advocate the overthrow and destruction of . . . the United States by force and violence, and (2) knowingly and willfully to advocate . . . the duty and necessity of overthrowing and destroying . . . the United States by force and violence.” They were not indicted for treason. As in the Schenck decision, the subject of treason never arose.

And with good reason. Although speech—even political speech, let alone pornography, defamation, or commercial speech—has never been fully free in the United States, it is an impossible stretch, logically and constitutionally, to attempt to punish speech with indictment and conviction for treason. There are just three crimes expressly mentioned in the Constitution. Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy, but neither offense is actually defined.

However, Article III, Section 3, spells out that: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Not until 1945 did the Supreme Court of the United States review a treason conviction. Cramer v. United Stateswas the first. Seven other cases followed, two in the Supreme Court and five in United States courts of appeal: Haupt v. United States, Chandler v. United States, Gillars v. United States, Best v. United States, Burgman v. United States, D’Aquino v. United States, and Kawakita v. United States.

Cumulatively, in these eight decisions arising from World War II the federal courts established that for a prosecutor to obtain a treason conviction he must prove four elements beyond a reasonable doubt: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), and (4) providing aid and comfort to the enemy.

Note that not one of these essential elements requires a speech component.

Gillars provides an example of what an overt act can consist of in a treason prosecution. The indictment against Gillars (“Axis Sally,” to her Nazi employers) alleged, in part:

. . . [t]hat on a day between January 1, 1944 and June 6, 1944, the exact date to the Grand Jurors being unknown, said defendant, at Berlin, Germany, did speak into a microphone in a recording studio of the German Radio Broadcasting Company, and thereby did participate in a phonographic recording and cause to be phonographically recorded a radio drama entitled “Vision of Invasion,” said defendant then and there well knowing that said recorded radio drama was to be subsequently broadcast by the German Radio Broadcasting Company to the United States and to its citizens and soldiers at home and abroad as an element of German propaganda and an instrument of psychological warfare. (Emphasis added.)

In Kawakita the Supreme Court of the United States addressed the second requirement for a treason conviction, two-witness proof:

Each witness who testified [against Kawakita] to an overt act was, however, an eye-witness to the commission of that act. * * * This overt act . . . was testified to by thirteen witnesses. * * * But they all agreed that [Kawakita] struck Grant. * * * There is no doubt . . . the witnesses were all talking about the same incident and were describing the same conduct on [Kawakita’s] part. (Emphasis added.)

As to the “intent to betray” element of the crime of treason, the Supreme Court in Cramer noted that:

There was ample evidence for the jury that Cramer had a treasonable intent. The trial court charged the jury that “criminal intent and knowledge, being a mental state, are not susceptible of being proved by direct evidence, and therefore you must infer the nature of the defendant’s intent and knowledge from all the circumstances. * * * So if you believe that the defendant performed acts which by their nature gave aid and comfort to the enemy, knowing or believing him to be an enemy, then you must find that he had criminal intent, since he intended to do the act forbidden by the law. * * * The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act . . . . For the same reasons a man cannot slip through our treason law because his aid to those who would destroy his country was prompted by a desire to “accommodate a friend.” (Emphasis added.)

The final element of a treason case is that the defendant’s conduct provided “aid and comfort” to an enemy of the United States. In Cramer, the Supreme Court observed that “[t]he very minimum function that an overt act must perform in a treason prosecution is that it shows sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.” (Emphasis added.) The same was true in Chandler, where the court had to decide whether the prosecution adduced enough evidence from which the jury could reasonably have concluded Chandler’s overt act(s) had provided the constitutionally requisite “aid and comfort” to the Nazi regime. Chandler claimed that not one of the alleged overt acts—by themselves—provided aid and comfort to the Nazi’s goals.
The court of appeals disagreed:

* * * These services consisted not merely of the culminating act of making a recording, but also of the necessary preliminary acts directed to that end. They were all part and parcel of the totality of aid and comfort given by the course of conduct as a whole. Attending a conference of commentators, at the summons of the Chief of the U.S.A. Zone, in order that directives as to the current propaganda line might be relayed and discussed and individual assignments made, could reasonably be found to have been of aid and comfort to the enemy. The proof under overt acts 4 and 5 established Chandler’s participation in two such conferences. (Emphasis added.)

At this point it is useful to repeat the constitutional definition of treason: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Which brings us to the most notorious post–World War II case of treason, Hanoi Jane Fonda.

When Erika Holzer and I published “Aid and Comfort”: Jane Fonda in North Vietnam several years ago, I appeared on The O’Reilly Factor with Fonda’s former husband and still-apologist, Tom Hayden. After I blasted Fonda for giving aid and comfort to our Communist enemies, all Hayden could stammer in response was that she was exercising her “right to free speech.” The facts are otherwise.

Speech becomes treason when it transcends mere words.

In July 1972, while American servicemen were fighting and dying in Vietnam, Fonda traveled to Hanoi, the capital of Communist North Vietnam. Her activities there included not only making propaganda broadcasts (tapes of which were played incessantly to American prisoners of war) but also meeting with senior Communist civilian and military leaders (at which time she condemned the United States and lauded the Communists). In addition, she held press conferences (at which she viciously attacked this country and its leaders); she provided the North Vietnamese with “photo opportunities” (the most notorious showed her perched at the controls of an anti-aircraft gun, looking through the gun sight at an imaginary American plane); and she conducted “interviews” with seven American POWs (whom she harangued about their “war crimes”).

The Fonda episode provides an eloquent answer to the question posed in this essay: “When does speech become treason?”

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It is not when World War I resisters leaflet against recruitment. Nor when domestic Communists—whom Justice William O. Douglas called “miserable merchants of unwanted ideas, whose wares remain unsold”—agree to organize and, later, to advocate. And in today’s America, it certainly is not when an intellectually sleazy propagandist like Michael Moore creates a Goebbels-like filmic distortion of his political opponents and their beliefs.

Speech becomes treason when it transcends mere words, ceasing to be communication alone, and satisfies the four requisites demanded by the Supreme Court: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), and (4) providing aid and comfort to the enemy.

Thus, while the Michael Moores receive a free-speech pass, the Fondas do not. Nor should have the most recent American to escape a treason indictment, Taliban John Walker. Some of his apologists and defenders claimed that Walker’s sojourn with the Taliban was merely the exercise of a constitutional right akin to free speech—namely, the right of association, also guaranteed by the First Amendment.

Here is just some of what Walker did:

He crossed from Pakistan into Afghanistan to join the Taliban.

He presented a letter of introduction to the Taliban telling them that he, an American, wanted to fight for them.

He agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans.

He traveled to, and stayed in, a bin Laden guest house.

He trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States.

He met personally with bin Laden, receiving the terrorist’s thanks for having joined jihad.

He met with a senior al-Qaeda leader to discuss where he would fight.

He traveled to Kabul, where he was issued a weapon.

He marched, armed, to the front with approximately 150 non-Afghan fighters under the command of an Iraqi.

He fought Northern Alliance troops.

He was under arms for four or five months.

He remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden.

He remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda.

He retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-i Janghi prison.

He was in the prison, and complicit, when Taliban detainees attacked CIA agent Mike Spann and his colleague, overpowered the guards, armed themselves, and killed Spann.

He retreated, though wounded, with other detainees to a basement. He remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out.

Applying these facts to the Supreme Court’s four-element legal template for the crime of treason, it is clear Walker could have been indicted for, and convicted of, that crime. Surely, a jury could have found in Walker’s conduct at least one overt act. Surely, from that act, a jury could have inferred that Walker possessed the requisite intent to harm the United States. Surely, a jury could have concluded that the overt act(s) provided aid and comfort to an enemy of the United States. And surely—somewhere among the countless members of the United States military and CIA, FBI agents, troops of the Northern Alliance, American and foreign journalists, Taliban fighters, and even al-Qaeda terrorists—federal prosecutors could have found two witnesses to at least one of Walker’s overt acts.

Just as Hanoi Jane Fonda is the poster girl for treason during the Vietnam War era, Taliban John Walker is the poster boy for treason during the current War on Terror.

“Hanoi Jane” was the poster girl for treason during the Vietnam War.

Yet neither of them were indicted for treason, even though whatever speech (or association) they engaged in far transcended mere words, ceasing to be communication alone and satisfying beyond a reasonable doubt the four requisites demanded by the Supreme Court for a treason conviction: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), and (4) providing aid and comfort to the enemy.

Because Fonda and Walker crossed the bright moral and legal line separating speech from treason, they should have been indicted for, and convicted of, the latter. In not doing so, our government twice sent the wrong message.

If I have one regret from my radical years, it is that this country was too tolerant towards the treason of its enemies within. If patriotic Americans had been more vigilant in the defense of their country, if they had called things by their right names, if they had confronted us with the seriousness of our attacks, they might have caught the attention of those of us who were well-meaning, if utterly misguided. And they might have stopped us in our tracks.

(David Horowitz, president of the Center for the Study of Popular Culture, editor of Front Page Magazine—and former co-editor of the Sixties-era Ramparts magazine; emphasis added.)

While the reader ponders the serious implications of that revelation, I would add only a few words, written some five hundred years ago: “Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason.”
Nor should we call it speech.

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