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Volokh Conspiracy

San Diego Has Been Ticketing People for "Seditious Language"


So reports Voice of San Diego (Kate Nucci):

San Diego Police Chief Dave Nisleit has instructed officers to stop enforcing a century-old law that forbids "seditious language" as elected officials begin the process of repealing it.

Earlier this month, VOSD reported that police¬†since 2013 had issued at least 82 tickets for what's generally understood as speech advocating to overthrow the government….

Because the tickets were filed in recent years as infractions rather than misdemeanors, the process has played out administratively, not criminally. On par with speeding tickets, infractions don't entitle defendants to legal counsel or a trial by jury. Lawyers for both the city and the public defender said they were unaware that SDPD was still enforcing that section of the municipal code.

I certainly had never heard of this recent practice in San Diego, or anywhere else; the ordinance was enacted in 1918, and reads,

[It is] unlawful for any person … to utter or use within the hearing of one or more persons any seditious language, words or epithets, or to address to another, or to utter in the presence of another, any words, language or expression or seditious remarks, having a tendency to create a breach of the public peace.

At the time, "sedition" was understood to mean "the stirring up of disorder in the State, tending toward treason, but lacking an overt act." But under modern First Amendment law, such a prohibition is clearly unconstitutional. (The article doesn't make clear just what speech has led to the tickets, and thus how the police officers who were giving the tickets were actually interpreting "seditious.")

There are of course some narrow exceptions to the First Amendment: Advocacy intended to and likely to persuade people to commit imminent crimes (revolutionary, treasonous, or otherwise) is punishable as "incitement"; face-to-face personal insults that tend to lead to a fight are punishable "fighting words"; and there are similar exceptions for solicitation of specific crimes, true threats of crimes, and the like. But a broad prohibition on "seditious language" goes way beyond that. And even if the "seditious remarks, having a tendency to create a breach of the public peace" clause were read as applying only to fighting words, it would still be unconstitutionally viewpoint-based in its limitation to "seditious" fighting words.

Thanks to Prof. Eric M. Freedman for the pointer.