Geoffrey R. Stone on What Counts as Sedition
Prosecutions of “Sedition” Are Rare. That Doesn’t Mean Trump Rioters Are Off the Hook.
Let’s start with the basics: What does “sedition” actually mean?
Acts of sedition are designed to overthrow or to prevent the functioning of the government. A simple example would be if the people who entered the Capitol last Wednesday had the intent to prevent the government from proceeding in the way it was planned. Most of the issues in American history about sedition have involved seditious libel, when you can punish someone for speech that might have the effect of leading others to engage in illegal actions.
When did the concept of “seditious libel” first appear in American history?
The “Alien and Sedition Acts of 1798″ were passed during one of the dark periods in American history. Their purpose was to prevent criticism of the government. If you gave a speech in which you criticized the president, John Adams, that could be regarded and was regarded as seditious libel, you could be criminally prosecuted. The rationale was that there was the possibility that we would go to war with France, and that speech critical of the administration would potentially undermine the ability to do that successfully. More than a dozen people, including journalists and public officials, were prosecuted by the Adams administration. As it turned out, we never went to war and Adams was defeated by Thomas Jefferson in the election of 1800. In part, this was because people were unhappy with the Sedition Act. Since 1969, no one has been convicted in the Supreme Court of the crime of engaging in speech that could lead others to engage in unlawful conduct. The test is so demanding that it’s almost impossible to satisfy.
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