Sedition

Definition: Inciting resistance or revolution against a legal government

Significance: Sedition laws, which are justified as necessary responses to the dangers of revolution, have pervaded human history; by stifling discussion of political issues, they have constituted one of the most powerful and repressive forms of censorship.

The concept of sedition generally, and of the common-law crime of seditious libel in particular, has eluded precise definition. Any expression that promotes disaffection toward, or hatred or contempt of, government—especially expression that advocates public disorder or rebellion—might be classified as seditious. Seditious libel implies the additional charge that the communication is defamatory or injures a person spoken of or otherwise represented. For a statement to be libelous in the United States it must be untrue as well as injurious. Sedition is distinct from treason—which is an action directed toward the overthrow or military defeat of a government. Roughly speaking, then, sedition is encouraging overthrow of the government, treason attempting to do so. Many antigovernment activities—such as burning draft cards or national flags—are problematic because they contain both speech and acts.

Sedition in Western Civilization

A succession of laws criminalizing sedition has characterized the history of Western civilization from ancient to modern times. The United States provides the broadest protections against the enactment and enforcement of laws regulating sedition, but the wide range of activities encompassed within the concept defies easy categorization and, thus, sure immunity against interference. In the early American colonies, proscriptions of seditious writings and utterances were intermittently but, in certain well-publicized cases, vigorously enforced. Surprisingly, however, the colonial press and public behaved as if these common-law traditions did not exist. Whether or not the First Amendment to the U.S. Constitution was intended to supersede the common-law crime of seditious libel has been the object of considerable historical debate. What is uncontested, however, is that the American experience with the Sedition Act of 1798 profoundly altered subsequent political thought regarding government censorship of free expression.

During a wave of censorship, the Federalist-dominated Congress in 1798 passed the Sedition Act, which criminalized “writing, printing, uttering or publishing any false, scandalous and malicious writing . . . against the government of the United States.” The act also prohibited the publication of messages that would bring the government, Congress, or the President into “contempt or disrepute.” At least twenty-five people were charged with, and ten convicted of, violations of the Sedition Act prior to its expiration in 1801. Most were newspaper editors critical of the Federalists. Popular opposition to the act contributed to the defeat of the Federalist Party in the elections of 1800. When the act expired in 1801, then-president Thomas Jefferson pardoned those imprisoned and repaid the fines of those who had been convicted. The lesson of the Sedition Act was that antisedition laws can be easily transformed into tools for stifling political dissent.

World War I and the Espionage Act of 1917

The consequences of the Sedition Act deterred government censorship until the United States entered World War I. In the interim, a number of states passed “criminal syndicalism” or “criminal anarchy” statutes to harass and censor various groups, including abolitionists, anarchists, and advocates of organized labor; enforcement, however, was sparse. America’s entry into World War I precipitated the passage of the Espionage Act of 1917, amended and fortified in 1918 to empower the federal government to punish seditious expression. The act outlawed false statements intended to impair the operations of the military. It also criminalized attempts to incite insubordination or refusal of duty in the military and attempts to obstruct military recruitment. Amendments to the law in 1918 further proscribed disloyal or abusive criticism of the form of government of the United States and “language intended to bring the form of government of the United States . . . into contempt . . . or disrepute.” The patriotic fervor behind the war led many states to pass or strengthen antisedition statutes that were often vigorously enforced.

Many enduring principles of free speech law were developed in judicial opinions written when sedition cases reached the courts. In Schenck v. United States (1919), for example, the U.S. Supreme Court announced a standard for deciding cases involving sedition: Communication was punishable if the words used create a “clear and present danger” of evils that government has a right to prevent. Invocation of this standard routinely resulted in conviction of defendants because their expression had a tendency to cause harm. However, in Abrams v. United States (1919), Justice Oliver Wendell Holmes invoked the standard in dissent, arguing that words should be protected “unless they so imminently threaten immediate interference with . . . the law that an immediate check is required to save the country.”

State sedition statutes were also challenged in the courts. In Gitlow v. New York (1925), the Supreme Court held that the First Amendment’s guarantee of free expression had been extended by the Fourteenth Amendment to apply to the states. The majority of the Court nevertheless upheld the conviction of defendant Abraham Gitlow for inciting the overthrow of the government, arguing that preventive action is essential to extinguish the spark of revolution before it kindles a revolutionary blaze. Holmes and fellow justice Louis Brandeis objected because Gitlow’s communication “had no chance of starting a present conflagration.” Holmes added that if, “in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Justice Brandeis noted in Whitney v. California (1927): “If there be time to expose through discussion the falsehood and fallacies . . . the remedy to be applied is more speech, not enforced silence.”

The free-speech theory of Holmes and Brandeis ultimately prevailed in 1969, when the Supreme Court ruled, in Brandenburg v. Ohio, that seditious and even threatening speech is protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Court later invoked the First Amendment to protect a broad range of political expression. These have included anonymous messages (Talley v. California, 1960); criticisms of government officials—including false statements, so long as they are not made with knowledge that they are false or with reckless disregard of truth (New York Times Co. v. Sullivan, 1964); refusal to salute the American flag (West Virginia State Board of Education v. Barnette, 1943); and burning U.S. flags as a form of symbolic political expression (Texas v. Johnson, 1989). The Court has declined, however, to protect expression advising youth to oppose the military draft or to refuse or evade military service (Gara v. United States, 1950), and has refused to protect draft-card burning to express opposition to military service (United States v. O’Brien, 1968).

Bibliography

Franklyn S. Haiman’s Speech and Law in a Free Society (Chicago: University of Chicago Press, 1981) provides thorough explanations and insightful critiques of American attempts to control seditious communication. Leonard W. Levy provides a somewhat unbalanced but insightful history of sedition prior to 1800 in Emergence of a Free Press (New York: Oxford University Press, 1985). The most thorough history of the Sedition Act is James Morton Smith’s Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956). A concise explanation of the origins of seditious libel that summarizes the most important U.S. sedition cases can be found in Thomas L. Tedford’s Freedom of Speech in the United States (2d ed. New York: McGraw-Hill, 1993).