“Sedition” is more than just a cool song from Fiddler on the Roof (“Sedition, sedition! Sedition! Who, day and night, must counsel revolution, Stir up mobs of people, urge them to revolt? . . .”). It’s also the name of a crime, and a reader asks me: Given how narrow treason is, what’s up with sedition?

“Sedition” has many possible meanings, but I think the reader (and some others) have used it to refer to advocacy of revolution against the government, or advocacy of illegal conduct more generally, or even attempts to arouse hostility against the government. The most famous Sedition Act in U.S. history, the Sedition Act of 1798, was limited to seditious falsehoods (though in practice was used against seditious opinions, too), and said that:

[It shall be illegal — on pain of up to a $2000 fine and 2 years in prison — to write or publish] any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to

  • defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute;

  • or to excite against them, or either or any of them, the hatred of the good people of the United States,

  • or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act,

  • or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government. . . .

[The Act was to remain in force until March 3, 1801, the last day of the Presidential term in which it was enacted. Bullets added. -EV]

Take away the requirement of falsehood, and set aside the hostile designs of any foreign nation, you have a working definition of “sedition.”

Actually committing physical crimes, or conspiring to commit such crimes (i.e., agreeing with specific people to commit those crimes), is still illegal. But mere advocacy of crime is generally constitutionally protected (see Brandenburg v. Ohio (1969)), unless the speech is (1) intended and (2) likely to incite (3) imminent illegal conduct. The classic example is giving a speech to an angry mob, urging them (explicitly or implicitly) to attack someone or destroy some property. Public advocacy of violent conduct at some unspecified future time, on the other hand, is not treated as advocacy of imminent conduct, and is thus constitutionally protected. And imminence seems to be read quite narrowly, as referring to conduct in a few hours or a few days at most.

Now some other kinds of related speech can be restricted under other doctrines. Threatening a particular person, for instance, is unprotected under the threat exception. Soliciting a specific crime against a specific person, especially when done privately (“Please kill my wife”), is also unprotected, though the Supreme Court has never explicitly defined the distinction between this and incitement of nonimminent conduct.

But simply advocating the propriety of illegal conduct, whether it’s an illegal sit-in, illegal violence, or revolution, is constitutionally protected (again, unless it’s intended to or likely to cause imminent illegal conduct, which is quite unlikely). About a decade ago, for instance, a Florida sheriff urged that Ice-T (who now plays a policeman on television) be charged with sedition because of his Cop Killer song; but that would clearly be foreclosed, even if there was evidence that Ice-T was seriously urging killing of police officers (since he wasn’t intending to urge imminent killing). See Lee Sheriff Wants Sedition Charge Over “Cop Killer,” Orlando Sentinel Tribune, July 7, 1992, at D6.

Is the right rule? I think it probably is. While it’s tempting to say that in a democracy, people who think a law is wrong should urge that it be changed, not urge that it be violated, laws that ban advocacy of illegal conduct quickly end up punishing a lot of speech that’s quite valuable. Bans limited to explicit advocacy can be easily skirted; the message “break the law” can easily be conveyed without using those words. So the government will usually, for understandable reasons, try to “close this loophole” by going after implicit advocacy as well.

But much strong condemnation of a law (e.g., “Abortionists are murderers, and the law that allows abortion and protects abortionists from righteous defenders of the unborn is wrong and contemptible”) can be credibly argued to be implicit advocacy of violation. The World War I-era cases (such as U.S. v. Schenck and U.S. v. Debs) might be examples of this phenomenon.

So anyone who wants to condemn an existing law will be at the mercy of prosecutors, judges, and juries — if they conclude that deep down inside he was really intending to advocate breaking the law, and not just condemning the law and advocating that it be changed, then he’ll go to prison. And as a result many people might well be deterred from even expressing strong disagreement with a law, for fear that it will be interpreted as implicit advocacy of breaking the law.

But in any case, rightly or wrongly, under the Brandenburg rule nearly all seditious advocacy constitutionally protected.

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