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Suppose that over the course of a few months, a small group of armed militants has come up with plans to distribute firearms and take over the United States Capitol. Suppose, too, that they have done so using a website on the "deep web." Everything the group has done points to how dead serious it is in its intentions to carry out an overthrow of the U.S. government.

As the group is organizing, however, the FBI launches an investigation into its activities. Members of the group are arrested, and the attack never takes place. While sharing information and discussing ideas is generally protected as free speech, the FBI believes what the group posts to the website crosses the line. The alleged ringleaders of the plot are charged with "seditious conspiracy," a federal crime related to treason and other anti-government offenses. Also known as "sedition," seditious conspiracy carries heavy criminal penalties.

Sedition is a serious felony punishable by fines and prison time, and it refers to the act of inciting revolt or violence against a lawful authority with the goal of destroying or overthrowing it.

The following article provides an overview of this particular crime against the government, with historical references.

Seditious Conspiracy and Federal Law: The Basics

The federal law against seditious conspiracy can be found in Title 18 of the U.S. Code, specifically 18 U.S.C. § 2384. That section of the U.S. Code deals with treason, rebellion, and similar offenses.

In that section of the U.S. Code, a definition of sedition is laid out. Sedition is defined as a crime involving two or more people in the United States:

  • To conspire to overthrow or destroy by force the government of the United States or to level war against it,
  • 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.

The Sedition Act of 1798

In the late 1700s, the United States faced one of its first major challenges to the First Amendment and freedom of speech in the form of the Sedition Act of 1798.

In 1798, risks of war with France were high. Anxious that foreign persons within the United States would become disloyal to the U.S. in the event of such a war and worried that criticism by Democrats and Republicans of Federalist policies would compromise the Federalist Party, members of that party pushed for the passage of this Act. It was enacted on July 14, 1798.

Among other things, the Act addressed what is known as seditious libel, which is either the printing or publishing of false information about the government, or malicious writing aimed at overthrowing the government.

Under the following presidential administration, that of Thomas Jefferson, the Act expired on March 3, 1801.

Sedition Act of 1918

As an extension of the Espionage Act of 1917, the Sedition Act of 1918 was enacted on May 16, 1918.

Signed into law roughly 120 years after the Sedition Act of 1798, the Sedition Act of 1918 served as a response by Congress to concerns that a variety of political dissidents posed threats to the United States' wartime efforts. At the time, World War I would continue for another few months until November of 1918.

Among other things, the Sedition Act of 1918 criminalized the following types of activities:

  • Inciting disloyalty within the United States military
  • Spoken or written language disloyal to the U.S. government, military, flag, or Constitution
  • Promoting violations of the Act
  • Supporting nations at war with the U.S.

Including prohibitions on using certain language, the Act came to be viewed as interfering with First Amendment rights, including freedom of speech. As a result, there were moves to repeal the Act. In 1920, the Act was repealed, while other sedition laws remain in effect today.

Free Speech, Sedition, and Treason

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. In most cases, simply advocating for the use of force 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, even if those opinions are not favorable.

But actively planning such an action could be considered seditious conspiracy. Examples of the kinds of things one might do in actively planning such an action are distributing weapons, working out the logistics of an attack, and/or actively opposing lawful authority. When such conduct is coupled with language that also suggests an attempt to overthrow the government, it is easier for a person to be charged with seditious conspiracy.

Sedition differs from treason (defined in Article III of the U.S. Constitution) in an important way.

While seditious conspiracy is generally defined as conduct or language inciting rebellion against the authority of a state, treason is the more serious offense of actively making war against the United States or giving aid to its enemies. Another way of looking at it is that seditious conspiracy often occurs before an act of treason.

Seditious Conspiracy: Historical Examples

Many of the more high-profile seditious conspiracy cases won by the U.S. government involve Puerto Rican nationalists plotting to overthrow the U.S. and asserting their independence.

The first of such nationalists was Pedro Albizu Campos, who (along with nine accomplices) was convicted of sedition in 1937 and jailed for 10 years for attempting to overthrow the government. He and others had been active members of the Nationalist Party, which (according to the U.S. prosecutors) was aimed at independence through force. Other, similar cases involving Puerto Rican nationalists followed.

More recently, in 2010, nine members of a militia group called "the Hutaree" spanning Michigan, Ohio, and Indiana were charged with seditious conspiracy on suspicion of planning an armed conflict against federal, state, and local law enforcement. They were acquitted by a judge in 2012, however, due to insufficient evidence.

Seditious Conspiracy Today?

Having participated in the January 6 Capitol Hill riots, members of the Oath Keepers, an American far-right anti-government militia, were convicted of sedition charges.

As the founder and leader of the group, former Montana attorney Stewart Rhodes was convicted of seditious conspiracy. Concerning the criminal proceedings against Mr. Rhodes, the Department of Justice (DOJ) proved in a court of law that he conspired to “oppose by force the execution of the laws governing the transfer of presidential power by Jan. 20, 2021."

The DOJ also pointed to the following as indications of Mr. Rhodes' conspiracy:

  • Since early 2020, he and members of the group chatted by encrypted platforms about travelling to the Capitol to engage in the activities that occurred on January 6, 2021.
  • In these messages, the members of the group discussed bringing weapons to carry out an attack on the Capitol, while they also discussed and planned violence against various public officials.

At the same time, attention has been drawn to how Mr. Rhodes called upon former President Donald Trump to invoke the Insurrection Act. It has also come out that the former lawyer also threatened to hang Speaker of the United States House of Representatives Nancy Pelosi.

Under sedition laws, Mr. Rhodes and other members of the group face 20 years to life in federal prison.

In the proceedings against Mr. Rhodes, U.S. prosecutors proved that he and other members of the group attempted to interfere with the peaceable transfer of power during the last presidential election.

Charged with a Federal Crime? Get in Touch with a Defense Attorney Today

While sedition is not a commonly charged offense in this country, federal crimes, in general, are punished quite severely upon conviction. If you're facing seditious conspiracy charges or any other federal charges, you'll want to work with an attorney experienced in federal matters. Get started today by meeting with an experienced criminal defense attorney near you.

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