When Anti-Government Speech Becomes Sedition

Anti-government speech has become a four-letter word.

In more and more cases, the government is declaring war on what should be protected political speech whenever it challenges the government’s power, reveals the government’s corruption, exposes the government’s lies, and encourages the citizenry to push back against the government’s many injustices.

Indeed, there is a long and growing list of the kinds of speech that the government considers dangerous enough to red flag and subject to censorship, surveillance, investigation and prosecution: hate speech, conspiratorial speech, treasonous speech, threatening speech, inflammatory speech, radical speech, anti-government speech, extremist speech, etc.

Things are about to get even dicier for those who believe in fully exercising their right to political expression.

Indeed, the government’s seditious conspiracy charges against Stewart Rhodes, the founder of Oath Keepers, and several of his associates for their alleged involvement in the January 6 Capitol riots puts the entire concept of anti-government political expression on trial.

Enacted during the Civil War to prosecute secessionists, seditious conspiracy makes it a crime for two or more individuals to conspire to “‘overthrow, put down, or to destroy by force’ the U.S. government, or to levy war against it, or to oppose by force and try to prevent the execution of any law.”

It’s a hard charge to prove, and the government’s track record hasn’t been the greatest.

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Sedition Charges Are Almost Always a Terrible Idea

The weaponization of law against speech disliked by powerful people has prompted landmark free speech decisions. “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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,” the U.S. Supreme Court ruled in Brandenburg v. Ohio (1969).

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