Consider the following scenario. A small group of armed militants has devised plans to distribute firearms and take over the United States Capitol. They've done so over a period of a few months. Suppose, too, that they have done so using a website on the "deep web." Everything the group has done points to how deadly serious it is in its intentions to overthrow the U.S. government.
As the group is organizing, the FBI launches an investigation into its activities. Members of the group are arrested, and the attack never takes place. Sharing information and discussing ideas is generally protected as free speech. But the FBI believes what the group posts to the website crosses the line. The FBI charges the alleged ringleaders of the plot with "seditious conspiracy." This is 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. Sedition is inciting revolt or violence against a lawful authority to destroy or overthrow it.
This article gives an overview of this particular crime against the government. It provides historical references.
Seditious Conspiracy and Federal Law: The Basics
The federal law against seditious conspiracy is 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.
That section of the U.S. Code lays out a definition of sedition. Sedition is 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.
Free Speech, Sedition, and Treason: Current Legal Standards
To get a conviction for seditious conspiracy, the government must prove that the defendant 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. Instead, they're just sharing their opinions, even if they are unfavorable.
But actively planning such an action could be considered seditious conspiracy. Examples of what one might do in actively planning such an action are:
- Distributing weapons
- Working out the logistics of an attack
- Actively opposing lawful authority
It is easier to charge a person with unlawful conspiracy when:
- Any of the types of conduct listed above not only occur,
- But they are also coupled with words that suggest the speaker's intention to engage in any of those actions.
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.
A Legal History: The Sedition Acts of 1798 and 1918
The Sedition Act of 1798
In the late 1700s, the United States faced one of its first major challenges to the First Amendment. At the same time, it faced one of the larger challenges to freedom of speech in the form of the Sedition Act of 1798.
In 1798, the risks of war with France were high. Anxious that foreign persons within the United States would become disloyal to the U.S., members of the Federalist Party pushed for the passage of this Act. Concerns that Democrats and Republicans would continue criticizing Federalist policies caused fear. There was worry that such criticism would compromise the Federalist Party. So, amid these anxieties, the Sedition Act was enacted on July 14, 1798.
Among other things, the Act addressed seditious libel. This is either:
- The printing or publishing of false information about the government, or
- Malicious writing aimed at overthrowing the government.
Under the next presidential administration, that of Thomas Jefferson, the Act expired on March 3, 1801.
The Sedition Act of 1918
As an extension of the Espionage Act of 1917, the Sedition Act of 1918 was enacted on May 16, 1918.
The Sedition Act of 1918 was Congress' response to concerns about various political dissidents. Congress worried that they posed threats to the United States' wartime efforts. Signed into law roughly 120 years after the Sedition Act of 1798, the anxieties behind the Act of 1918 found their roots in the early United States. And when the Act of 1918 was signed, World War I would continue for another few months until November 1918. This created even greater anxieties around how anti-American dissidents needed to be suppressed.
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. It was understood that the Act interfered with 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.
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. According to the U.S. prosecutors in the case, the Nationalist Party aimed at independence for Puerto Rico through force. Other similar cases involving Puerto Rican nationalists followed.
In 2010, nine members of a militia group called "the Hutaree" were charged with seditious conspiracy. Members were in Michigan, Ohio, and Indiana. They were accused of planning an armed conflict against federal, state, and local law enforcement. They were acquitted by a judge in 2012 due to insufficient evidence.
Seditious Conspiracy Today?
Having participated in the Jan. 6, 2021, Capitol Hill riots, the Oath Keepers, an American far-right anti-government militia, have been convicted of sedition charges. Many of them have also been sentenced.
As the founder and leader of the group, former Montana attorney Stewart Rhodes was convicted of seditious conspiracy. Concerning the criminal proceedings against Rhodes, the Department of Justice (DOJ) proved 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 Rhodes' conspiracy:
- Since early 2020, he and group members chatted by encrypted platforms about traveling to the Capitol to engage in the activities on January 6, 2021.
- In these messages, members of the group discussed bringing weapons to attack the Capitol while they also discussed and planned violence against various public officials.
At the same time, attention has been drawn to how 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, Rhodes and other group members face 20 years to life in federal prison.
In the proceedings against Rhodes, U.S. prosecutors proved that he and other group members attempted to interfere with the peaceable transfer of power during the last presidential election. In May 2023, Rhodes, the militia's founder, was sentenced to 18 years in prison for his role in the riot at the U.S. Capitol. In May 2023, the leader of the Florida chapter of the Oath Keepers, Kelly Meggs, was sentenced to 12 years in prison.
For their own roles in the Capitol attack, many members of another extremist group, the Proud Boys, have also been sentenced to lengthy prison terms. With many a charge of seditious conspiracy against them, many group members have stood trial since January 2021. These criminal charges, for example, resulted recently in the sentencing of one high-profile Proud Boy—the former leader of the group Enrique Tarrio.
Alongside the Oath Keepers or Proud Boys members, many other rioters have faced similar consequences. They have also been indicted and sentenced to terms in prison for their involvement in the Capitol Hill riot.
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 national matters. Get started today by meeting with an experienced criminal defense attorney near you. This area of criminal law can be a dauntingly complicated one. It's important to contact an attorney if you need help with such a legal matter. When facing such charges and being accused of attempting to overthrow the federal government, you face serious criminal allegations.