It seems that, as one editorial writer opined today, that the Trumpian antics to derail the electoral process are “no longer funny.” We’ve all read articles in two separate categories. One is the debasing of the law with suits that would get law students tossed from class. The other is the fear that these antics are undermining the foundation of our democracy. I would add another: criminality.
The out-going president and the 125 members of the Congress who signed on to the Texas lawsuit yesterday almost thrown out the window in its rejection by the Supreme Court, are potentially guilty of a serious but little heard about crime. It’s called sedition. Let’s look at the definition and then its application.
Here’s the definition: “conduct or speech inciting people to rebel against the authority of a state or monarch.” “Sedition is a serious felony punishable by fines and up to 20 years in prison.” (Findlaw) Our founding fathers, so much in favor with the Trumpianistas, were early proponents of making sedition a crime. In 1799 the Sedition Act was passed. Now a little political, legal history from the archives of the House of Representatives. See if it sounds familiar.
“In one of the first tests of freedom of speech, the House passed the Sedition Act, permitting the deportation, fine, or imprisonment of anyone deemed a threat or publishing “false, scandalous, or malicious writing” against the government of the United States. The 5th Congress (1797–1799), narrowly divided between the majority Federalists and minority Jeffersonian Republicans, voted 44 to 41 in favor of the Senate-passed bill. Federalists championed the legislation fearing impending war with France and out of the desire to hold the majority in Congress and to retain the White House, then occupied by Federalist John Adams.. In an era when newspapers served as political parties’ chief organs, the Republican press was particularly vicious in its attacks on Federalists and the Adams administration.”
Adams signed the bill into law on July 14th. While the bill expired in 1801 the arguments, pro and con, are heard again today and have been for centuries. They are still the basis of the arguments about what does and does not constitute freedom of speech.
We can further educate ourselves by dipping back into Findlaw’s research and writings.
“The federal law against seditious conspiracy can be found in Title 18 of the U.S. Code (which includes treason, rebellion, and similar offenses), specifically 18 U.S.C. S 1284. According to the statutory definition of sedition, it is a crime for two or more people within the jurisdiction of the United States:
- To conspire to overthrow or destroy by force the government of the United States or to level war against them;
- To oppose by force the authority of the United States government; to prevent, hinder, or delay by force the execution of any law of the United States; or
- To take, seize, or possess by force any property of the United States contrary to the authority thereof.”
“In order to get a conviction for seditious conspiracy, the government must prove that the defendant in fact conspired to use force. Simply advocating for the use of force is not the same thing and in most cases is protected as free speech under the First Amendment. For example, two or more people who give public speeches suggesting the need for a total revolution “by any means necessary” have not necessarily conspired to overthrow the government. Rather, they’re just sharing their opinions, however unsavory. But actively planning such an action (distributing guns, working out the logistics of an attack, actively opposing lawful authority, etc.) could be considered a seditious conspiracy.”
“Ultimately, the goal is to prevent threats against the United States while protecting individuals’ First Amendment rights, which isn’t always such a clear distinction.”
At this point you may be mulling over the thought if I haven’t used Findlaw to contradict my accusation. I may have. It’s a tough call but not necessarily the point. It’s a tough call because there is very little case law. A case against Puerto Rican nationalists who were charged with sedition in their quest for Puerto Rican independence in the 1930’s ended in acquittal for lack of evidence. It’s also a tough call because we’re tip-toeing along a very fine line. Is overthrowing an election overthrowing the government? We know that advocating the overthrow of the government is protected by free speech, although some of our founding fathers said it shouldn’t be. What if the President’s call for taking to the streets, and hints both subtle and not, could be proven to have incited individuals and groups to organize in an effort to create an armed insurrection? That brings his actions pretty close to the line. What if the result of the Supreme Court’s two face-smackings of Trump cases had resulted in armed insurrection in the states that the suit was aimed at? Again, we’d need a bevy of constitutional lawyers to parse the words and actions and surely they wouldn’t agree. But if a case were filed for sedition and was heard by the courts we’d know the actions that brought the suit were good enough at least for judges to hear arguments on.
The real issue can be found way back when in the early constitutional writings. Should someone, even an elected official, be allowed to get that close to the line? Do we just trust that democracy is like a good defensive line, that it will give but not break? The ultimate question is whether freedom of speech is absolute. We know in some cases it is not. Recall for a moment the famous dictum by Justice Oliver Wendel Holmes who admonished that one could not legally cry “fire!” in a crowded theatre and be protected by freedom of speech.
Let us finish with some political thoughts, more practical than theoretical. We know that Donald Trump is a bully. To bring Texas back into the picture, they say over there, “If it looks like a dawg, sounds like a dawg, and smells like a dawg, it dang well is a dog.” The history of Trump is the history of a bully. We also know that turning the other cheek may be the Christian standard, but it doesn’t bring change with a bully. What does? You have to bully the bully.
Our President-elect sounds a little like Rodney King. “Why can’t we all just get along?” A full-court press on getting along is fine until you get to the people who won’t play the game. They won’t get along because they don’t want to get along. For these folks one needs a different tactic. Lincoln used to tell the story of the reporter who wrote a story full of lies. When it was published, he was grabbed by the townspeople, tarred, feathered and run out of town on a rail. Another enterprising reporter was at the other end of the rail and asked the beset reporter what it felt like. His response: “Except for the publicity, I could have done without the experience.” We need to publicly choose a few bullies and make examples of them. No we’re not going to go after 125 Congresspersons and a sitting or former president all at once. We need to pick a few of them, the “worst case examples” and charge them. While they are bearing the expenses, having their lives picked through, and taking liquor or pills for the anxiety, the others will shrink into the background knowing that they could be next.
The president-elect surely should try to bring us together. He also should surely not allow bad boys to go unpunished for being bad boys–at least from my perspective.
Both a philosophical and practical Bill Gralnick shows up here again dealing with “life and death issues” that face our democracy. For a reminder there is an escapist alternative. That would be–say it with me now–“The War of the Itchy Balls and Other Tales from Brooklyn.” What an excellent gift idea! Finally, we’ve got about six months to go before we deliver a haymaker to this virus. Stay strong, stay smart, stay well.