In the USA, can treason be protected by the First Amendment?

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"?

4 Answers 4

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:

• advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U.S. 444 (1969);
• obscenity, see, e.g., Miller v. California, 413 U.S. 15 (1973);
• defamation, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974);
• speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949);
• so-called “fighting words,” see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942);
• child pornography, see New York v. Ferber, 458 U.S. 747 (1982);
• fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976);
• true threats, see Watts v. United States, 394 U.S. 705 (1969); and
• speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U.S. 713 (1971).

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.

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).

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:

• • *." 1 Stat. 112 (1790).

  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.