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In the US if martial law is declared can citizens be arrested for free speech that speaks against the war or against the government? The reason for my question is in regard to the Ukrainian arrest of Gonzalo Lara who spoke out against the Ukrainian war. I supported our aid to Ukraine in the war against Russia, but my concerns now are Ukraine's restriction of freedoms. The declaration of martial law, suspension of lawful elections, and restricting free speech, make me wonder if Ukraine is abusing Democracy. I know in the past we have restricted freedom through the Alien and Sedition Acts, during the Civil War, and WWII against the Japanese. In modern times can people still be jailed for free speech during war times? Thank you for your time.
There are two answers to this question with respect to the United States:
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If martial law is declared, all bets are off. However, in the United States, martial law can only be declared in cases where actual war has caused the closing of the courts of law. So martial law could be declared in Gettysburg in July 1863, but not in Indiana during the Civil War. The Supreme Court in Ex parte Milligan (1866) declared unconstitutional government attempts to declare martial law in places where courts were open.
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Assume we are at war, but the war is not being fought on American soil. The World War I cases restricted speech have been discredited. Present law permits punishment for speech only when that speech incites to imminent lawless conduct that threatens serious harm and is likely to occur. Under this standard, none of the persons who protested American entry into World War I could have been prosecuted or convicted.
