Treason, Technology, and Freedom of Expression

Abstract

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. The government has already demonstrated its willingness to punish treasonous expression. 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. That potential clash between the power to punish treason and our freedoms of expression has, thanks to advances in communications technologies, become a matter of everyday concern. 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. It hosts many an expression that an eager prosecutor could cite both as proof of adherence to U.S. enemies - a subjective state of mind - and as proof of an overt act giving them aid and comfort - an objective fact to which any two of the expression's readers could testify. 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. This paper details the scope of the law of treasonous expression, explains why technology threatens to bring that law into conflict with the First Amendment, and suggests a way to safely separate the power to punish treason from our freedoms of expression.