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Mildred Gillars was convicted of treason September 10, 1948. As I understand it, first Amendment protects unpopular speech, but is confined and not unlimited. The classic example is that one can not yell "fire" in a crowded movie theatre and incite a panicked exodus.

I imagine free speech as a box: if the speech is within the box the content is protected by the first amendment. Using the box analogy, Why is the Gillars radio broadcast not protected under the first amendment? How exactly did the Gillars broadcast "cross the line"?

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 7 at 5:46
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It might be more helpful to reverse the analogy.

Unprotected speech is a box, and everything that doesn't fit inside the box is free speech.

The box is small and strangely shaped, and therefore, very few things will fit inside. The government has spent centuries trying to cram things into it, so we have a pretty good idea of what fits and what doesn't:

Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar. Among these categories are:

These categories have a historical foundation in the Court's free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.

United States v. Alvarez, 567 U.S. 709, 717–18 (2012).

Although I don't know that I've ever seen the Supreme Court acknowledge it explicitly, one of the common threads you'll see in most of these categories is that First Amendment protection begins to weaken when words are spoken with some kind of ill intent and are likely to cause some kind of societal harm.

So the Gillars case falls into the "speech integral to criminal conduct" category. She appealed her conviction on First Amendment grounds, but the D.C. Circuit affirmed. Although the First Amendment would protect someone who hated the American government and went on the radio to denounce the American government, it does not protect those who commit the act of treason, even if speech is their weapon:

There is no question in our mind that words may be an integral part of the commission of the crime if the elements which constitute treason are present; that is, if there is adherence to and the giving of aid and comfort to the enemy by an overt act proved by two witnesses, with intention to betray, though the overt act be committed through speech. ...

While the crime is not committed by mere expressions of opinion or criticism, words spoken as part of a program of propaganda warefare, in the course of employment by the enemy in its conduct of war against the United States, to which the accused owes allegiance, may be an integral part of the crime. There is evidence in this case of a course of conduct on behalf of the enemy in the prosecution of its war against the United States. The use of speech to this end, as the evidence permitted the jury to believe, made acts of words. The First Amendment does not protect one from accountability for words as such.

Gillars v. United States, 182 F.2d 962, 971 (D.C. Cir. 1950).

This is probably one of the least-developed exceptions to First Amendment protection, and therefore one of the hardest to understand. For a deep dive, I'd recommend Eugene Volokh, The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981 (2016).

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 7 at 5:46
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The precedent arising from the Millard Gillars treason prosecution is Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). There were numerous issues raised on appeal but portion of the opinion regarding what counts as treason is as follows:

The theory of this contention is that treason may not be committed by words, that all vocal utterances are, by reason of their nature and regardless of all else, an exercise of freedom of thought, which may not be prohibited by condemning the expression of thought by words. Expression of thought or opinion about the Government or criticism of it is not treason. The oppressive use of the power of government to destroy political enemies by accusing them of crime underlay the determination of the framers of our Constitution to limit treason to acts, and to such acts only as come within the definition which is embedded in the Constitution itself. In addition, the First Amendment bars enlarging treason to include the mere expression of views, opinion or criticism. There is more to the crime than this.

In Cramer v. United States, supra, 325 U.S. at page 29, 65 S.Ct.at page 932, the Supreme Court has said:

‘ * * * the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.’

There is no question in our mind that words may be an integral part of the commission of the crime if the elements which constitute treason are present; that is, if there is adherence to and the giving of aid and comfort to the enemy by an overt act proved by two witnesses, with intention to betray, though the overt act be committed through speech. A similar question has been similarly decided in Chandler v. United States, 1 Cir., 1948, 171 F.2d 921, certiorari denied, 1948, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081. See, also, United States v. Best, D.C. Mass. 1948, 76 F.Supp. 857; Rex v. Joyce, 173 L.T.R. 377, Affirmed sub nom, Joyce v. Director of Public Prosecutions, (1946) A.C. 347; Charge to Grand Jury- Treason, C.C.S.D. Ohio 1861, 30 Fed.Cas.at pp. 1036, 1037, No. 18,272 (communication of intelligence to the enemy); Charge to Grand Jury- Treason, C.C.S.D.N.Y. 1861, 30 Fed.Cas.at pages 1034, 1035, No. 18,271 (advising, inciting or persuading others to give aid and comfort to the enemy); and Cramer v. United States, supra, 325 U.S.AT page 29, 65 S.Ct. 918. While the crime is not committed by mere expressions of opinion or criticism, words spoken as part of a program of propaganda warefare, in the course of employment by the enemy in its conduct of war against the United States, to which the accused owes allegiance, may be an integral part of the crime. There is evidence in this case of a course of conduct on behalf of the enemy in the prosecution of its war against the United States. The use of speech to this end, as the evidence permitted the jury to believe, made acts of words. 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 believe 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.

Gillars v. U.S., 182 F.2d 962, 970–71 (D.C. Cir. 1950).

A roughly contemporaneous case involving similar facts that relied on Gillars as precedent was Best v. United States, 184 F.2d 131 (1st Cir. 1950).

It was also referenced regarding what constituted sufficient duress to excuse a violation of the code of military justice seven years later. U.S. v. Olson, 1957 WL 4621 (Court of Military Appeals 1957). The Courts in Gillars and Olson discounted duress defenses because the acts constituting the alleged duress were too feeble.

The most recent case citing it for this point of law was in a case seeking to invalidate veteran's benefits for aiding an enemy during the Korean War.

The findings of fact and the conclusions of law made by the Veterans Administration are fully supported by substantial evidence. It is well settled that aid and assistance to the enemy may be extended in the form of verbal utterances alone, as was the case in this instance. Cramer v. United States, 325 U.S. 1, 29, 65 S.Ct. 918, 89 L.Ed. 1441; United States v. Burgman, D.C., 87 F.Supp. 568, 571; 88 U.S.App.D.C. 184, 188 F.2d 637; Gillars v. United States, 87 U.S.App.D.C. 16, 25, 182 F.2d 962; Chandler v. United States, 1 Cir., 171 F.2d 921, 938; Iva Ikuko Toguri D'Aquino v. United States, 9 Cir., 192 F.2d 338, 366.

Thompson v. Whittier, 185 F. Supp. 306, 314 (D.D.C 1960)

In my view, it is rather doubtful that the precedent created by that conviction would still be good law on the facts presented. Constitutional First Amendment law in the U.S. has evolved a lot since 1950, and the fact that this case has not been relied upon by other courts since 1960 suggests that this may be a case that has been implicitly repealed or narrowed, even though no specific court has addressed the validity of this particular precedent.

This was also a quite fact specific ruling. The introductory portion of the Gillars opinion states that:

Appellant was convicted of treason in a jury trial in the United States District Court for the District of Columbia. Treason alone of crimes is defined in the Constitution, as follows:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. * * *" U.S. Const. Art. III, § 3.1

The First Congress, in 1790, provided by statute,

"* * * That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States,

    • *." 1 Stat. 112 (1790).

The indictment alleges that appellant was born in Maine, was a citizen of and owed allegiance to the United States, that within the German Reich, after December 11, 1941, to and including May 8, 1945, in violation of her duty of allegiance she knowingly and intentionally adhered to the enemies of the United States, to wit, the Government of the German Reich, its agents, instrumentalities, representatives and subjects with which the United States was at war, and gave to said enemies aid and comfort within the United States and elsewhere, by participating in the psychological warfare of the German Government against the United States. This participation is alleged to have consisted of radio broadcasts and the making of phonographic recordings with the intent that they would be used in broadcasts to the United States and to American Expeditionary Forces in French North Africa, Italy, France and England. The indictment charges the commission of ten overt acts, each of which is described, and, finally, that following commission of the offense the District of Columbia was the first Federal Judicial District into which appellant was brought.

Eight of the ten alleged overt acts were submitted to the jury. A verdict of guilty was returned, based on the commission of overt act No. 10, which is set forth in the indictment as follows:

"10. That on a day between January 1, 1944 and June 6, 1944, the exact date being to the Grand Jurors 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."

To the extent that it is still good law, a formal oath of allegiance to Hitler and the Third Reich which she swore while a declared war against Germany was pending was an important distinguishing fact from most other cases. The oath of allegiance established beyond a reasonable doubt, the element of adherence to the enemy. See "TREASON: True to the Red, White & Blue", Time (March 7, 1949) (cited in the Wikipedia article in the original post).

Other answers correctly note that in the context of the constitutional definition of treason, "enemy" is narrowly defined to mean a country (or perhaps an organization) with which the United States is at war, and not merely a domestic political faction or a country with whom the U.S. is not on good terms and sees as a rival and adversary outside the context of an actual war.

This case is also not an application of the "fire" in a crowded theater theory of a First Amendment exception, which among other things, involving a knowing falsehood used to incite panic, and not a truthful one. This is an entirely different theory. The veracity of her propaganda was not an issue in her case.

The theory in her case was basically a "verbal acts" theory, similar to the theory that saying "I accept" in a contract negotiation is a verbal act and not just an expressive statement of a viewpoint protected under the First Amendment.

It is also worth noting that ten charges were filed, two were dismissed prior to trial by the court, and she was convicted of only one of the remaining eight counts. This suggests that the jury found that most of the overt acts she allegedly committed did not rise to the level of treason.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 7 at 5:46
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Treason, like free speech, is in the Constitution

To add to bdb's point that the First Amendment is not absolute, the relation of treason to free speech is also complicated by the fact that treason itself is in the Constitution. (In fact, treason is the only crime that is defined in the Constitution.) That treason is in the Constitution means it has a different relation to the first Amendment than other crimes, which are created by statutes.

There is nothing in the text, purpose or history of the First Amendment that suggests it was meant to protect treasonous speech.

It is also worth noting that treason itself is defined relatively narrowly. Following the Constitution's Treason Clause, the crime of treason (USC §2381) has two prongs. To be guilty of treason, one must either:

  1. Levy war against the United States; or
  2. Adhere to its enemies, giving them aid or comfort.

("Enemies" in the second prong has been interpreted narrowly, to mean only enemies in a real war.)

To see how narrowly treason is defined, consider the Supreme Court's 1807 decision in Ex Parte Bollman. This case arose out of the Burr Conspiracy, Aaron Burr's plan to carve a new country out of the US. Bollman was charged with conspiring with Burr. The Court ordered Bollman released. In his opinion, John Marshall explained why:

However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses.

The Founders defined treason narrowly, and put that definition in the Constitution, to de-politicize it. According to James Madison (in Federalist 43), in the past, “violent factions” had often used “new-fangled and artificial" definitions of treason to “wreck their alternate malignity on each other…” To keep from repeating this sorry history, the Constitution “opposed a barrier to this peculiar danger,” by defining what constituted treason and specifying how it was to be proved.

If you want to read more about treason and free speech, here's a nice op ed, and two fairly reader-friendly law review articles.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Pat W. Sep 6 at 17:57
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Treason is protected in limited circumstances by Article 1.

In order to guarantee that members of Congress are not denounced for their policy positions, the Constitution gives complete immunity to anything said in Congressional proceedings. Article 1 Section 6:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In the relatively recent case Gravel v United States the court held that this clause also protected the aids of elected members of Congress from prosecution.

Given certain laws that have been passed during our history, the wisdom of this exemption has borne out. It would be a shame if voting or arguing against the Sedition Act in the halls of Congress would itself be considered a violation of the Sedition Act!

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