COUNTERCOLUMN: All Your Bias Are Belong to Us

From a reader:

I'm writing because I just read your reply to the critical e-mail from the
"moderate conservative". I'm asking you, please, to stay the course (Bush
41 :-)). The liberal media is becoming more extreme in its slanted
reporting and you're just holding them to account. It's almost as if the
closer Bush 43 comes to succeeding at anything, this media goes out of its
way to try to smear any success. So please do not alter your editorial bias
nor your meticulous critical style. This leads me to a simple, yet vexing,
question that you may wish to explore with your readers.

We know that free speech has limitations. The typical example given is
hollering "Fire" in a crowded theatre. We know that the right to dissent is
guaranteed by the Constitution. But my simple question is: "At what point
does dissent cross the line into unpatriotic and at what point does
unpatriotic cross the line into treasonous?". I'm reminded of Jane Fonda's
acts during the Vietnam War.

My view of unpatriotic behavior is a lot like Justice Potter's famous view of pornography: "I know it when I see it."

I don't feel the need to criminalize unpatriotic behavior. I've never been a supporter of laws banning flag burning--they just make it easier to figure out who the idiots were. Besides--the flag is a national emblem--not a graven image.

Since treason is a crime--and we have an overwhelming national interest in keeping it that way--then the definition of treason needs to be carefully defined for the purpose of legal prosecutions, and carefully limited so that the harsh penalties that treason rightly warrants are not vested upon the merely unpatriotic.

Americans such as John Walker Lindh and Nick Padilla, who join Al Qaeda or the Taliban or conspire to assist them long after Al Qaeda had publicly declared war against the United States, I believe are clearly guilty of treason.

I am not a death penalty supporter, generally, but Lindh's case really pushed my limits.

If nothing else, Lindh should have become an intelligence source four our side after September 11th, 2001.

I do not believe that Jane Fonda's trip to Hanoi constituted treason. She did not take up arms against our country, nor did she materially assist those who did. Any propaganda advantage the communists gained from the photo opportunity was marginal and speculative. Her views were aligned with a sizable minority of the American public at the time, and so not nearly so far outside of the mainstream as Lindh's. Her trip to Hanoi aside, her views, while misguided, could reasonably be classified as legitimate dissent.

I've seen some apocryphal reporting that our own POWs nearby recieved extra torture correlated with her visit. But such treatment could not reasonably have been foreseen by a barely post-adolescent idiot.

So Fonda was not guilty of treason, but simply of reprehensible and unpatriotic behavior.

I can't imagine a journalist committing outright treason in the normal course of his duties. If he learns a state secret and passes that on to the enemy to give them some advantage, then that would certainly be treason, but it is not part of his job as a journalist.

If he learns a state secret and deems it newsworthy and reports it out of the interests of exposure, public service, watchdogism, etc. (i.e., Daniel Ellsberg and the Pentagon Papers), then he may be guilty of violating a state secrets act, but not of commiting treason.

One of the legal tests in that case should be whether the enemy--or potential enemy--gains any *material* advantage from learning the information. A propaganda coup should not, of itself, be sufficient to warrant the harshest penalties under the law.

And if the only reason the information was classified was to prevent embarrassment to the military or other government bodies, then obviously the government was wrong to classify it, and such classification was merely an abuse of power.

And if the reporter happens to uncover a deliberate, classified scheme to mislead the American people or their representatives in congress, then viva la fourth estate!

If the first amendment protects pornography, then certainly it affects unpatriotic journalism too, including odious opionion pieces by Ted Rall and Robert Scheer. Their columns are not treasonous by any definition. Ted Rall's content is unpatriotic. I'm not sure yet if I'd drop Scheer in the category, because I still believe in the concept of a 'loyal opposition;' even a fierce one.

But I'm glad the truly unpatriotic are out there, and protected under the First Amendment, because the free press helps me efficiently discern the morons in our midst.

Splash, out

Jason