Wars have never been very good for free expression in America. That might be true even when America isn't fighting the war.
On Monday morning, with Russia apparently on the brink of invading Ukraine, Harvard Law professor Laurence Tribe tweeted that it might be time for American officials to start up treason prosecutions.
An uproar ensued, and Tribe deleted his tweet. Still, both because of his prominence and the recent tendency toward red-baiting by U.S. officials, it's worth considering why his proposal was so awful.
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As a factual matter, it was incorrect. Even if the United States gives a lot of weaponry and support to Ukraine, that country is not our ally — we have no treaty or other formal agreement to come to their defense in case of attack. Indeed, one of the hot debates during the last few months has been about whether the United States and other NATO countries will ever allow Ukraine to join the alliance and become an ally in a real, legal sense. Regardless of which side of that argument you take, it's a crucial distinction you would expect an Ivy League law professor to understand and acknowledge.
But Tribe's proposal was also terrible because the United States has a longtime habit of elbowing aside First Amendment rights during wartime. Those of us of a certain age remember when Bill Maher lost his job at ABC several months after 9/11, shortly after a White House spokesman warned that "all Americans … need to watch what they say, watch what they do." (The spokesman later protested that he was misunderstood, but that's not how his remarks were understood in the moment.) During World War I, Eugene Debs — who had been a Socialist candidate for president — was imprisoned after declaring "I will never go to war for a capitalist government." Similarly, Abraham Lincoln's administration had a Democratic congressman arrested for giving an anti-war speech during the Civil War. This country has a long history of ignoring its guaranteed rights during times of conflict. Those aren't our best moments.
If Tribe's tweet is bad on the merits, it's also terrible politics. Conservatives have convinced themselves and their voters that Democrats are the totalitarian, liberty-hating party. Most of the time that's nonsense — but when a prominent liberal like Tribe makes the case that Fox News personalities should be arrested, it gets a lot easier to make the case. Tucker Carlson's not leaving the air anytime soon, but he has another bullet in his rhetorical arsenal to use against liberals. Not great.
While I don't like Carlson's xenophobic reasoning, I agree it's a bad idea for the United States to go to war in Europe. (The same is true of most Americans — another reason Tribe's tweet fails the political smell test.) But even if I disagreed, I still think he should get the chance to make a case. Questions of war and peace are among the most critical a government can make. It's in such moments that America's commitment to free expression is needed most.
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