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 &quot;fire&quot; 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 &quot;cross the line&quot;?
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: 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 &amp; 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). 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 &quot;speech integral to criminal conduct&quot; 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 &quot;Speech Integral to Criminal Conduct&quot; Exception, 101 Cornell L. Rev. 981 (2016).
The fact that something is illegal does not imply that it is illegal to post pictures of it happening. In general, under U.S. law, free speech protects almost all forms of communications subject to a handful of narrow exceptions and this is not one of them. There are many legitimate reasons one might want to post video of a fight (e.g. to identify crime perpetrators for purposes of prosecuting them), but no legitimate purpose is legally necessary. Surely as a platform Reddit cant hide against it being a platform of free speech in this case? They most definitely can. Reddit is also not responsible for user posted content under Section 230 of the Communication Decency Act, even if it were illegal for the person posting it to post the content
The only real answer is that the US Supreme Court, in interpreting the constitution, and specifically the argument that the 13th Amendment prohibits a draft for compelled military services has totally rejected that argument. For many years now the US has not used a draft, and it is obviously possible for the US to have an enduring and powerful military without any draft, which was perhaps not apparent to the Justices in 1918. A draft had been common in this country from the colonial period, through the Revolution, the Civil War, World Wars I and II, the Korean War, and the Vietnam War. In reaction to the problems during the Vietnam War, and the great opposition to any draft at that time, the US has not used a draft since, although it retains a legal requirement to register for a possible draft, and the legal authority to impose one should it be thought wise. Note that this was not because of the 13th Amendment. Note also that compelled service by the citizens (or residents) in a locality, particularly to fight fires and floods, when the usual forces are inadequate to that end, has been commonly used. Such compulsory service has never been thought to be prohibited by the 13th Amendment. Also, as mentioned in comments, citizens can be compelled to do jury duty, which could in theory be considered &quot;involuntary servitude&quot; but has never been thought to be prohibited by the 13th amendment. The answer by Trish (now deleted) thoroughly described the many differences between a slave and a drafted soldier. Still, drafted military service might be thought to be a form of involuntary servitude. But the Court (and the laws and other courts as well) have not treated it as such. In the Selective Draft Law Cases, 245 U.S. 366 (1918) the Court thought the idea that compulsory military service constituted involuntary servitude was so wrongheaded that it thought a very brief mention sufficient to refute this contention. It wrote (at 245 U. S. 390): Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement. It is clear from the text of that opinion that the justices thought that the existence of a power to draft soldiers was essential to the implementation of the constitutional power (article I section 8): To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; The opinion discusses the history of compelled military service in the United States, in the colonies before there was a United States, and in Great Britain before that. The opinion says that: Compelled military service is neither repugnant to a free government nor in conflict with the constitutional guaranties of individual liberty. Indeed, it may not be doubted that the very conception of a just government and its duty to the citizen includes the duty of the citizen to render military service in case of need, and the right of the government to compel it. and Further, it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power. One may disagree, but that is the law of the land as interpreted by the final body authorized to make such interpretations, the Supreme Court, and it remains good law today.
As many parties as have standing. The First Amendment protects the right to petition for redress of grievances, so any limitation on that right would be highly disfavored. When there's a rush of cases like this, though, there are a few option for dealing with them. For instance, a plaintiff may seek class certification, permitting him to stand in for similarly situated parties so they don't need to litigate themselves, or a court may consolidate the cases if they are sufficiently similar.
The problem is that the Constitution does not provide a freestanding right to &quot;self-determination,&quot; to self-defense, or to bodily integrity. To the extent the courts recognize any of these as implied rights, they are subject to balancing against other rights or governmental authority. Analogizing to the Second Amendment can be helpful. There's a lot of gray area in Second Amendment law, but it's pretty clear that I have a right to keep a knife on my bedstand, but not to build a nuclear arsenal in your backyard. Why not? Because you have a right to keep people off your property, and because the government has an interest in protecting its citizens, infrastructure, and natural resources from the risks associated with my incompetent exercise of my Second Amendment rights. So what interests are at stake in the abortion question? Roe held that women have a right to privacy that protects access to abortion, but it also recognized that the government has an interest in protecting potential life. The question was how to balance the privacy interest against the interest in protecting potential life. Roe said the woman's rights generally outweigh the government's interests up until the point of viability, at which point the government's interests begin to outweigh the woman's privacy interests. But Dobbs appears poised to change that by saying that the woman's right to privacy does not exist at all. Dobbs likewise rejects the idea that the right to due process or any other constitutional right protects the right to abortion. Therefore, it concludes, a woman has no rights that can outweigh the state's interest in protecting the potential life she is carrying. Dobbs also recognizes -- but does not take a position on -- the argument that a fetus is actually a person itself. If a legislature were to adopt that position, and the courts were to accept it, we would find ourselves in a position where whatever rights a woman has to self-determination and bodily integrity would have to be balanced against the fetus's rights to self-determination and bodily integrity.
One could make a First Amendment challenge to mask requirements through either the Free Exercise Clause or the Free Speech Clause. Neither approach is likely to succeed. Because going without a mask is not recognized as &quot;expressive conduct,&quot; it is not protected by the Free Speech Clause A free-speech challenge would likely also fail for two reasons. As you correctly suggested, the First Amendment protects more than just speech, also protecting &quot;expressive conduct,&quot; such as flag burning, dancing, and wearing armbands. Of course, literally any conduct could have some secret expressive meaning in the mind of the person carrying out -- &quot;I shot him in the face to say I didn't like him&quot; -- so we have a question of where to draw the line between what expressive conduct does and does not receive the strong protection the First Amendment affords to speech. The Supreme Court detailed that test in Texas v. Johnson, 491 U.S. 397 (1989), and it's now generally formulated as asking two questions: Did the speaker actually intend to convey a particularized message through his conduct? Are the people who see the conduct likely to understand that message? At the Sturgis rally, or at the statehouse protests over COVID restrictions, or some similar event that is explicitly opposed to masks, refusing to wear a mask goes a long ways in communicating an opposition to the mask requirements. But in the vast majority of cases, no one you run into in the normal course of daily life is likely to recognize that you are not wearing a mask because you are trying to communicate a message, let alone decipher what that message is. Do you believe that mask mandates are tyranny? That COVID-19 is a hoax? That life is meaningless and we should all welcome the hastening of human extinction? None of that is clear to the average viewer, which is who the courts are going to be concerned with. Because refusing to wear a mask is generally insufficient to convey a specific message, I'd argue that it is not expressive conduct. Because mask requirements are neutral as to religion and generally applicable, they do not violate the Free Exercise Clause. A religious challenge (&quot;My religion prohibits wearing masks&quot;) is likely to fail because &quot;the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'&quot; Employment Div. v. Smith, 494 U.S. 872, 879 (1990). This means that if the mask ban generally applies to everyone and you just happen to belong to a religion that forbids mask-wearing, you can't use that affiliation to escape the law's requirements. (The outcome may be different when you run the problem through the Religious Freedom Restoration Act or state-level analogues, which impose more stringent tests for infringements on religious liberty.)
Sure: No Constitutional rights are totally unencumbered. Even natural rights like the "right to life" are legally "infringed" through various theories (e.g., self-defense, capital punishment, warfare). The Second Amendment has been interpreted as a right to keep and bear weapons that would reasonably be used in self-defense or in military service. You don't have to go to strategic weapons like nukes to find "reasonable infringement" of that right. For example, even though the military and even police routinely use explosives, individuals are absolutely subject to the whims of a federal regulatory agency (the BATFE) as well as state restrictions if they want to keep and bear detonators. Also, I'm not aware of an absolute prohibition on the possession of nuclear devices by non-government entities. E.g., various government regulators oversee private entities that operate commercial and research nuclear reactors and other activities that put them all-but in possession of nuclear arms. If an individual really wanted to legally keep and bear a nuclear weapon it could probably be done with enough money and oversight. (Amendment: Except, as cpast points out in the comments, that there is a law against private possession of nuclear weapons in the U.S. Which just goes back to the broad answer to your general question: In practice there are no unencumbered rights. Constitutional "rights" might better be called things that require "strict scrutiny" and "narrow tailoring" of government infringement.)
The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress 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. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate.