14. The January 6 Rioters: Guilty of Sedition?

The U.S. Department of Justice has indicted over 400 of those who stormed the Capitol in January for trespassing, and over 100 for assaults on police officers. It is reportedly considering indicting about two dozen of the riot leaders for sedition. Is this a fair accusation?

Yes. The relevant statute defines sedition as an attempt "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." The rioters certainly hindered and delayed the legal certification of the Presidential vote, and the Capitol building they smashed into is clearly U.S. property.

As it happens prosecution for sedition has a miserable pedigree. In 1798 John Adams signed a Sedition Act that criminalized "false, scandalous, and malicious writing" about the President (himself). This blatant assault on free speech, in defiance of the First Amendment, was allowed to expire in 1801 and Adams' successor, Thomas Jefferson, pardoned those who had been convicted.

World War I also whipped up popular hysteria about the seditious potential of free speech. The Sedition Act of 1918 made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States." Several hundred people were convicted under this law, including Socialist Party candidate for President Eugene Debs.

Courts at the time upheld the law, although Justice Oliver Wendell Holmes introduced the concept of "clear and present danger" as the only legitimate reason to limit free speech. The First Amendment should not protect someone, he argued, who shouted "Fire" in a crowded theatre.

The Sedition Act of 1918 was largely repealed in 1921, but further attack on free speech came with the Smith Act of 1940. Spurred by fear of Communism, this law penalized the advocacy of the violent overthrow of the government. Hundreds of arrests were made through the 1950s.

The courts initially upheld convictions, but eventually came to distinguish between advocacy in the abstract and concrete acts of insurrection. Speech, in and of itself, could not be infringed except for cases like shouting "Fire" in a theatre. The Smith Act is still on the books, but has not been invoked since 1961.

The statutory provisions on sedition have seldom been used in recent years. They were invoked against Puerto Rican nationalists, who carried out 130 bombings, and the perpetrators of the 1993 World Trade Center bombing. Both cases clearly involved actions and not just abstract advocacy of ideas.

The most recent prosecution for sedition was a case against Michigan militia in 2010. The defendants were acquitted because their words -- their free speech -- did not lead to actual attacks on the government.

One exquisite irony is that Trump administration officials apparently considered sedition prosecutions against those protesting the murder of George Floyd. After all, they attacked federal officers and federal property! And the Trumpists on January 6? They attacked federal officers and federal property.

And the Rioter-in-Chief himself? True, the Donald did not actually smash through the Senate chamber door or kill a policeman with bear spray. But was his speech the equivalent of shouting "Fire" in a crowded theatre? What would Oliver Wendell Holmes say?