Free Speech

"Seditious Conspiracy" Is Still a Crime

But unlike the Sedition Act of 1798, the federal seditious conspiracy statute doesn't focus on antigovernment speech (such as alleged lies about the government).

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Some comments on the Michigan AG's #DetroitLeaks Takedown Demand, and Seditious Libel post reminded me to write about this: Occasionally, we hear about calls to prosecute people for "seditious conspiracy," but this means

conspir[ing] to overthrow, put down, or to 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.

This is just a special case of the broader proposition that conspiring to commit a crime can itself be a crime. You can be punished under state law for conspiring to commit murder or theft or what have you. You can be punished under federal law for conspiring to commit bank robbery, or to defraud the federal government. Likewise, you can be punished under the "seditious conspiracy" statute for conspiring to illegally oppose the enforcement of the law.

This is quite a different statute from the Sedition Act of 1798 (or from the common-law crime of seditious libel), which punished (among other things) false and malicious speech intended to defame the federal government. And to the extent that the seditious conspiracy law punishes agreements to commit crime, which may be expressed by speech, such conspiracy is viewed as constitutionally unprotected, because it is speech integral to the criminal conduct that is being planned. For more on this, see U.S. v. Rahman (2d Cir. 1999).

NEXT: Michigan AG's #DetroitLeaks Takedown Demand, and Seditious Libel

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  1. I’m sure the answer from the gentleman in NC will be a form of: Don’t just sing it, bring it!

  2. So advocating an illegal boycott would not be protected speech, because it is facilitating a crime?

    1. What crime?

      1. The crime of participating in an illegal boycott.

      2. So for example, a sign that says “don’t attend event E, tonight at time T, featuring person P, because of reason Y” could be seen as inciting imminent lawless action, right?

        1. Bustard: In most situations, the refusal to attend the event wouldn’t be a crime, so soliciting such refusal wouldn’t be a crime, either.

    2. Bustard: It’s complicated, but at least some forms of speech aimed at getting people to participate in an illegal boycott (one prohibited under the laws of restraint of trade) are indeed punishable, see Giboney v. Empire Storage & Ice Co..

    3. Advocacy is always protected. Incitement and solicitation are not. Incitement is defined as speech that is both subjectively intended and objectively likely to cause the listeners to act on it imminently. Solicitation would typically be addressed to an individual or small group, not just giving reasons why they ought to commit a crime but directly asking them to do so.

  3. What if the crime is against a state government?

    conspir[ing] to overthrow, put down, or to destroy by force the Government of Oregon, 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 Oregon, or by force to seize, take, or possess any property of Oregon contrary to the authority thereof.

  4. Michigan AG is a jew playing off the Marxist agenda….be warned.

    1. yeah, antisemitism is so 1936

  5. OK. I’m a bit less ticked off at this charge then, since it’s not sedition as I learned the term.

    So now I’m interested in the history.
    1) Why codify an existing inchoate crime? It’s been a while since law school; is it related to it being a federal crime?
    2) Why slap sedition as a title? That’s a…spicy term. Maybe it was less so when the law was passed? A conspiracy implies speech as you said, but the term seems overinclusive of the crime described.

    1. Sarcastr0, no legal weight behind anything I say, but I notice that seditious conspiracy seems to distinguish conduct in one set of circumstances from treason, which the same conduct might amount to in other circumstances.

      1. Perhaps because Treason is defined in the Constitution so calling it something else works to prohibit clearly illegal acts without raising a Constitutional issue.

    2. “Why codify an existing inchoate crime? ”

      The general federal conspiracy statute, 18 USC § 371, carries a maximum sentence of 5 years.

      The seditious conspiracy statute, 18 U.S. Code § 2384, carries a maximum sentence of 20 years.

      I believe that is why.

      In addition, SCOTUS has held that while the general conspiracy statute contains an express element of an “overt act,” some of the other federal conspiracy statutes do not, and so they do not necessarily have such a requirement. See Whitfield v. United States, 543 U.S. 209 (2005)

  6. Seditious conspiracy will go nicely with 10 U.S.C. §331-335 (federal Insurrection Act) when Radical Leftists start rioting after Trump begins his second term. With former Secretary of Defense Mark Esper, a Deep State loyalist, now gone, law and Order can finally be enforced.

    1. Poe’s Law!

  7. SO when does trumpski get charged?

    Oh, wait, he will charge Biden with it because everything he accuses anyone of doing, it is because he is already doing it

  8. The Declaration says, “That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

    So we declare that right to be an inalienable human right, not a right granted by government. Indeed, almost all (all???) governments deny that right to citizens, and that is not surprising.

    Revolutionaries must face the prospect of being hanged if they fail. In that sense, 2020 is no different than 1776.

  9. Thank you for educating me about what crime Barr is guilty of.

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