It’s an alarming accusation, and when it is made, it is often a serious danger to free expression.
In many nations, including the U.S., the threat of sedition prosecutions has been used to criminalize dissent — to intimidate, and perhaps even imprison, people who strenuously object to what the government is doing. The Alien and Sedition Acts of 1798, with their restrictions on freedom of speech, are often taken as a shameful violation of constitutional principles. In some of its most notorious decisions, the U.S. Supreme Court upheld laws that forbid sedition, even when applied to political protesters.
The Justice Department is now considering sedition charges against the mob that stormed the U.S. Capitol on Jan. 6 as Congress was voting to certify President Joe Biden’s electoral college victory. Some people have even called for prosecution, on charges of sedition, of former President Donald Trump, for inspiring and egging on the rioters before they invaded the Capitol.
The crime of sedition has been defined in many different ways. A broad definition might extend to heated political protests, meant to cast doubt on the competence, good faith or legitimacy of the current government. A narrow definition might be limited to acts of violence, in which people physically attack public officials and public property in a clear effort to overthrow the current government.
U.S. Supreme Court Justice Felix Frankfurter liked to say, “Never paraphrase a statute!” So here’s what U.S. law says now about the crime of “seditious conspiracy”:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
That’s clearly not the broad definition. It doesn’t capture heated protests, even if they cast grave doubt on the legitimacy of the current government. Under federal law, a conspiracy does not exist merely because of some agreement (or speech); there also needs to be some kind of “overt act” (such as the purchase of weapons to carry out the conspiracy).
In any case, the Constitution protects a lot of what would fall within the broad definition of sedition. In Brandenburg v. Ohio, decided in 1969, the Supreme Court went so far as to say that under the First Amendment, the government may not “forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That’s a fancy way of describing the clear-and-present-danger test, which protects people whose words are not likely to produce “imminent” lawless action. A lot of “sedition,” by historical standards, would receive constitutional protection under the Brandenburg standard.
At the same time, the existing federal law goes well beyond the narrow definition of sedition. It covers conspiracies, and it is not limited to efforts to overthrow or destroy the U.S. government.
We should be able to see, in this light, why the Justice Department is considering seditious conspiracy charges in connection with the Capitol riot.
Before and on Jan. 6, there appears to have been a conspiracy “by force to prevent, hinder, or delay the execution of any law of the United States,” most obviously the law specifying the date and time for the counting of electoral college votes. There also appears to have been a conspiracy “by force to seize, take, or possess” a property of the U.S.
At this point, you might be wondering about abuses of sedition law — and perhaps about the discussion, just a few months ago, of whether to charge political protestors with sedition. It was widely reported that former Attorney General William Barr asked federal prosecutors whether criminal charges might be brought against the mayor of Seattle for allowing activists to establish a police-free zone amid last summer’s Black Lives Matter protests.
Isn’t the very idea of sedition dangerous business? If the authorities might charge those who stormed the Capitol, might they turn around and prosecute dissenters of all kinds — abortion protestors, for example, or feminists protesting against sexual harassment and violence?
It’s a fair question, but the answer is pretty clear: Everything depends on whether there really was a conspiracy of some kind, and what the conspiracy, if it existed, specifically aimed to do. A public protest isn’t seditious conspiracy, even if it is full of anger and rage.
To fall within the law, participants have to conspire to do something specific, and to do it “by force.” True, the law has some vagueness, and overreaching is possible. But if people actually conspire to seize a government building, by force, or to prevent the execution of federal law, by force, a federal crime has been committed.
The Constitution doesn’t protect those who commit that offense. And despite the shameful history of the crime of sedition, that’s just fine.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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