WTH is Sedition?
The last four years have had a lot of legal experts looking up once-obscure terminology. Emoluments, insurrection, sedition. These are not words I learned in law school. But, here we are. As 2020 drew to a close (I refuse to tarnish my brand-new 2021 with this garbage), it left us a spectacular and horrific parting gift: an armed takeover of the Capitol to prevent the certification of Joe Biden as President.
The main word being thrown around, besides treason (more on that later), is sedition. As a First Amendment scholar, I know that word as an affront to freedom of speech, used by John Adams to silence his political foes in the wake of a potential war with France. But, you guys, it’s still a thing!
Section 2384 of Title 18 of the United States Code makes it illegal to commit a 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 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 be fined under this title or imprisoned not more than twenty years, or both.
In layperson’s terms — this publication’s specialty — you’re not allowed to plan with another person to overthrow the government, or to use force to oppose its authority, or stop it from doing what it’s legally supposed to do, or seize its property.
Just so you know (I didn’t before today!), “treason” is a separate thing and is part of Article III of the Constitution. Treason requires the testimony of two witnesses or a confession in open court and, historically, was punished by a very painful death.
Let’s get back to sedition. The last time section 2384 was used was in 1999 against the men who conspired to bomb the World Trade Center. In that case, even the religious leader who called for a jihad but was not involved in the actual bombings was put in jail for several years.
Other notable uses of this law include repeated efforts to forcefully oppose the United States’ authority in Puerto Rico — in the 1930s, 1950s, and 1980s. Prior to that, this law was used to combat Communism and anti-WWI sentiment in the 1910s and 1920s. Early cases show how willing courts were to find sedition even when no acts of force were committed.
In Bryant v. U.S., the Fifth Circuit found a seditious conspiracy in the creation of a secret organization that sought to prevent citizens from being drafted during WWI, and they contemplated the possible overthrow of the government. The defendants in that case attempted to coerce others to join their cause and acquire guns and ammunition, but no violence ever occurred. More strikingly, in the case of Wells v. United States, the court found seditious conspiracy where the defendants published pamphlets calling for people to “resist” and “refuse” to be conscripted. There was no violence, just the printing of the word “resist,” which the court to imply that they would use force if they felt it necessary. According to the court, that was all the statute required. And, just so you don’t fall down that rabbit hole, the Supreme Court has already held that the law criminalizing seditious conspiracy does not violate freedom of expression.
Arguably, breaking windows and stealing lecterns is not speech. Or is it? Burning a cross can be symbolic speech, donating money is speech, so why not breaking a window? What is speech anyway? Is it art just because you put it on a wall?
Look, I really don’t want to get into the definition of “speech” today, and thankfully I don’t have to. Because, as the Supreme Court has noted, section 2384 doesn’t outlaw the speech itself but the effects of it. It’s not against the law to criticize the government or say you think Trump was the real victor of the 2020 election (he wasn’t), but it is against the law to conspire to overthrow the government or oppose its authority by force. Like any criminal conspiracy, at a certain point the speech becomes more than just expression, it becomes a criminal act.
This is a clear case of conspiracy to commit sedition by the people who stormed the Capitol. They planned to and did use force to attempt to stop Congress from carrying out its duties. But can Trump be roped into this conspiracy? He was hiding in the White House at the time, but are his words to his followers enough for incitement or a conspiracy?
What did Trump actually say? His Tweets after he lost the election in November have plenty of forceful language, saying he will “fight on” or that Republican Senators should consider the loss an “act of war” and their failure to do so caused him to dub them the “weak and ineffective… Surrender Caucus.”
The two most obvious case of (alleged) incitement came on January 5 and 6. The first is this January 5 Tweet: “I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen.” In his speech on January 6, he told his followers that they would march together to the Capitol to convince the “strong” Republicans to be “bold.” These statements, combined with his months-long assertions of voter fraud and stolen elections certainly looks like approval of the subsequent storming of the Capitol building to stop the certification of Biden’s victory.
Plenty has already been written about Trump using dog whistles and coded messages to his followers that should be considered incitement. I’ll save that for another day. But if publishing a document that says “resist” is enough to constitute conspiracy to commit sedition, there is a case to be made that Trump’s Tweets and speeches may be enough. Still, considering how good he is at walking the line of incitement, it is extremely unlikely that he will be charged, much less convicted, of sedition.
