Treason in the USA

Like many conspiracy theories and disinformation campaigns, Russia may well be at the heart of the 5G health scares.

Naively, I’d expect working with a foreign power to harm and kill citizens of your country to be high treason. But I think we also have to weigh in that the internet makes certain actions easy and appear to be consequence free, and so legal sanctions should be reduced accordingly:

  • Actually being involved in the creation or initial dissemination (i.e. Ms. “Registered Nurse”): capital crime (execution or equivalent)
  • Actively promoting via social media post: felony (prison and fine in proportion to viewership and monetization)
  • Passively promoting (clicking “like”): misdemeanor fine ($1200, scales upwards by the same ratio that your income exceeds median income)
3 Likes

…and how do you enforce that on the pile of foreign actors employed in such campaigns?

(Also a note on treason, since the word gets thrown around a lot, the actual crime requires support to an enemy we are at war with. (We made allowances for the cold war still being defined as a war.))

7 Likes

And, it is the only crime specifically defined in the constitution, in an (unsuccessful) attempt to keep people from throwing it around carelessly.

8 Likes

You don’t, they’re not committing treason.

That hardly seems like a useful definition, if you’re right. Is actively working with a foreign power to harm and kill citizens of your country just an oopsie?

2 Likes

It can still be traitorous, but treason does in fact have a high bar as a legal definition, for a reason.

5 Likes

Whether it is a “useful” definition or not is immaterial. It is the definition, and we should stand by that.

13 Likes

This is so far off topic…
I know it’s usually a lost cause, but let’s try to stay on topic for this one. It is really important.

21 Likes

This is where I would defer to a legal scholar, but my understanding is that the then Soviet Union was declared, in an official sense, an enemy of the US. While Russia currently is certainly antagonistic enough to be, no declaration as such, currently exists.

I’m also in agreement with @docosc, that this should go elsewhere.
(…and it has. Thanks @ficuswhisperer.)
(Okay @GulliverFoyle. I’m just about done with thanking people. :wink: )

6 Likes

Article III, Section 3 of the Constitution of the United States

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. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Attainder is an ancient legal term of art and points to the motives of the framers of the Constitution. It refers to the State depriving someone of life, property or titles and specifically the right to pass them on as inheritance, usually without a trial. In essence, a revocation of their civil rights. It was frequently used by European states to quash internal dissent, and as such the framers saw it as a form of tyranny.

SCOTUS has historically also interpreted Article III, Section 3 fairly narrowly. One may agree or disagree with the utility of narrowly defining treason, but that precedent means there is zero chance it applies legally to the vast majority of circumstances in which the term is bandied about.

Which is not to say it precludes other federal crimes, of which the US has a very great many. However, any prosecutor seeking to prosecute someone for authoring, sharing or liking misinformation is going to run smack dab into the First Amendment. One exception to that might be if the person was giving specific medical or legal advice to specific people without a license to practice medicine or law, but generally authoring bad medical advice on social media would not be prosecutable. And if someone was practicing without a license, I’m fairly certain that would fall under states’ jurisdictions, not federal.

TL;DR: For better or worse, treason under the US Constitution is defined and interpreted quite narrowly.

2 Likes

Which I’d settle for, if anyone could name one.

This is basically the archetypal exception to the First Amendment. The only difference between this and screaming “Fire!” in a crowded theater is the latter case will at best only net you 10-15 deaths.

1 Like

Not quite. Even at the height of the Edward Douglass White Court’s use of that metaphor, it was used explicitly against distributing material protesting the draft, in essence equating promoting disloyalty to the war effort with shouting fire in a crowded theater. Now, SCOTUS has significant latitude in interpreting the Constitution, and it’s not inconceivable that the White Court could have expanded that to distributing quack medical advice, but that precedent has been steadily rolled back in the century since and First Amendment protections against the State prosecuting speech perceived to be dangerous firmed up to the point that the courts including the Supreme Court aren’t likely to convict anyone of spreading fake news.

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Which is not to say that it isn’t stupid and dangerous. Just that it isn’t prosecutable as the law stands.

[I hope you don’t mind. I split off this digression into its own thread so the discussion could continue.]

1 Like

Knock yourself out:

https://www.law.cornell.edu/uscode/text/18/part-I

Plenty to choose from.

Try this one for example:

https://www.law.cornell.edu/uscode/text/18/1038

or if you really think people spreading it are Russian agents, also:

https://www.law.cornell.edu/uscode/text/18/951

The 2001 AUMF essentially is a declaration of war against the whole world. All that the President has to do is say, ‘harboring al_Qaeda’, and presto, there’s a declared war.

2 Likes

True. The AUMF is part of that batch of problematic legislation and legal interpretation we rushed through after September 11th, that we should really be rethinking this many years later.

This topic was automatically closed 30 days after the last reply. New replies are no longer allowed.