Americans believe in freedom of speech. We believe in airing our opinions, our grievances, and our accusations. And the U.S. government protects that right.
But, as we mentioned in a previous article, the First Amendment doesn’t protect all speech. One of the most important exceptions refers to calls to overthrow the government. Since the events at the Capitol on January 6, there has been a lot of discussion of the terms sedition, insurrection, and treason. But what are the legal definitions of these three acts, and how are they different from one another?
Prohibited speech isn’t just limited to the overthrow of the government. For instance, yelling “fire” in a crowded theater is prohibited speech.
But when the crime is political, it may qualify as sedition. According to Title 18, second 2384 of the Code of Laws of the United States, sedition can meet any of three conditions.
If two or more people in any place subject to U.S. jurisdiction:
- conspire to overthrow, put down, or destroy by force or wage war against the government
- forcefully oppose government authority, preventing, hindering or delaying the execution of any law of the U.S.
- seize, take, or possess any U.S. property contrary to its laws
Immediacy is an important element in sedition. Advocating the use of force against the government some time in the future is not considered sedition; such speech is protected by the First Amendment.
The Justice Department determines what constitutes sedition. Last September, for instance, Attorney General Bill Barr encouraged prosecutors to charge Black Lives Matter protesters with sedition if they were believed to have caused violent crimes, such as taking a federal courthouse or other federal property by force. The charge of sedition, he continued, did not “require proof of a plot to overthrow the U.S. Government.”
While sedition is organized incitement to rebellion or civil disorder against the state’s authority, insurrection involves actual acts of violence against the state or its officers.
Only the attorney general can bring charges of insurrection, which is defined by Title 18, section 2383 of the U.S.C.:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Elsewhere (title 10, chapter 13, section 254), the U.S. Code allows the president to “immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.” If the insurrectionists don’t comply, the president can then call out the military and National Guard to suppress civil disorder and insurrection.
Sedition and insurrection are quite distinct from treason, which is a violation of a citizen’s allegiance to the U.S. by betrayal or aiding the country’s enemies.
The Constitution, in Article III, is quite clear on what treason involves.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
The use of the word “only” is significant. The framers intended that the charge of treason would not be expanded to become a political weapon. Congress can determine the penalties, but not alter the definition. (Title 18, Section 2381 imposes no less than five years’ imprisonment, no less than a $10,000 fine, and a lifetime ban from holding any public office. Treason could also carry the death penalty.)
Americans cannot be guilty of levying war on their own. It requires a group of people assembling, ready to use force. A conviction can only be obtained with, as Chief Justice John Marshall wrote, “actual assemblage of men for the purpose of executing a treasonable design.”
Aid and Comfort to Enemy — such as providing money to a belligerent nation or assistance to enemy soldier — can only be committed during time of war. Even then, a citizen is allowed aid or comfort the enemy without it being considered treason. Unless it can be proved the citizen was adhering to the enemy, there is no treason. And an enemy can only be a nation or organization with which the U.S. is in an open or declared war (Russia, therefore, does not qualify).
The overt act of treason must show criminal intent and support the accomplishment of a crime. The Constitution requires both concrete action and intent to betray the nation for a conviction of treason. Thoughts and intentions alone aren’t sufficient.
“No attainder of treason shall work corruption of blood,” means that the heirs of traitors will not lose their inheritance because of their forebear’s crime.
The concept of imminence is also important. The First Amendment protects your right to preach the overthrow of the government. But the protection ends when you incite others to imminent lawless action.
There is one additional crime associated with treason that shouldn’t be overlooked. Americans are not permitted to witness friends, neighbors, or relatives taking treasonous action without notifying authorities: Title 18, section 2382 states:
Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.
Unlike sedition and insurrection, treason is specifically and narrowly defined by the Constitution. This might be, perhaps, because the men who framed the Constitution had all been traitors themselves — to the British crown.
Featured image: An editorial cartoon from the May 9, 1918, New York Herald, showing Uncle Sam dragging men labeled Spy, Traitor, IWW (Industrial Workers of the World), Germ[an] money, and Sinn Fein. The flag that on the U.S. Capitol refers to the Sedition Act of 1918 (Library of Congress)
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