“History never repeats itself, but the Kaleidoscopic combinations of the pictured present often seem to be constructed out of the broken fragments of antique legends.”- Mark Twain
There is a word that has become increasingly popular ever since Trump was elected in 2016. Sedition. And since the January 6th storming of the Capitol, sedition seems to be a word dripping from everyone’s lips. To give some idea of just how much this word is being thrown around, Merriam-Webster’s dictionary reported that on January 6th there was an almost unbelievable 1500% surge in the number of people searching for the definition of “sedition.” The term also spent a good part of the day trending on Twitter.
Since this week marks the anniversary of the passage of the Sedition Act of 1918 it seems an opportune time to look back at the causes and effects of past sedition laws. Especially considering John Brennan had no compunctions about singling out libertarians as a group of people no longer deserving of their civil liberties and since, as this article will show, these laws are always vigorously used to silence people advocating for peace in a time of war. And since no group of people is more consistently anti-war than libertarians, this does not auger well for us.
We will look at the way the Sedition Act of 1918 was used by the courts, discuss why the common belief that this was repealed is a misconception that is at best only partially true, the way it is continuing to be weaponized today in several of the most egregious abuses of power in modern times, and going back to the early days of our Republic to show how the Jeffersonian Republicans so swiftly and successfully made the Alien & Sedition Act of 1798 a nullity. Finally we will discuss why Sedition is one the most American of all values.
The first thing to note is that the Sedition Act of 1918 was not a complete act in and of itself. It was an amendment to the Espionage Act of 1917 that had been passed as a wartime measure that, as the name itself would suggest sought to prevent support of United States enemies during wartime, it did so much more. It had a number of provisions that were more akin to sedition than espionage. Such as any attempt (even indirectly or unintentionally) prohibiting with interference with military operations, recruitment of soldiers or fostering insubordination. The sedition Act was an amendment to section 3 of the espionage act. This broadened the scope of prohibited speech and even expressions of one’s opinion. It forbade the use of “disloyal, profane, scurrilous, or abusive language” about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. Those convicted under the act generally received sentences of imprisonment for five to 20 years.
While many people mistakenly identify the espionage act and the sedition act as separate legislation, thus the repeal of the sedition act in 1920 was a repeal of wartime sedition laws. In fact it was solely a repeal of the expansion of section 3.
The espionage act’s initial provisions which were often tantamount to sedition remain good law to this day.118 U.S.C. ch. 37 (18 U.S.C. § 792 et seq.)
During World War I, the Wilson administration prosecuted war critics under the Espionage Act as a means to silence them. In 1919, the Supreme Court considered the constitutionality of three sedition trials.
Schenck v. United States, 249 U.S. 47
In this case, the defendant circulated literature arguing that the military draft violated the 13th Amendment. Schenck urged people to resist the draft. The Wilson Administration charged him under the Espionage Act with “obstruct[ing] the recruitment and enlistment service of the United States, when the United States was at war with the German Empire.” Schenck argued that the prosecution violated the Free Speech Clause of the First Amendment. Justice Holmes, writing for a unanimous Court, upheld the prosecution. He explained that during “ordinary times,” the Defendant would be permitted to oppose the draft. However, “the character of every act depends upon the circumstances in which it is done.” Next, Justice Holmes offered a very famous analogy that is often misunderstood. He wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But notice he referenced “falsely shouting fire in a crowded theater.” It is perfectly okay to shout fire if there is actually a fire. Five decades later, the Supreme Court effectively overturned this standard in Brandenburg v. Ohio, holding that the government cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Finally, Justice Holmes offered another famous test. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Here, the circumstances were dire. “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Therefore, Schenck’s prosecution was constitutional. To this day “clear and present danger” is a memorable phrase. But in the 1920s, it was merely a colorful term for what is known as the “bad tendency” test. That test allowed the government to ban speech if “the natural and probable tendency and effect of a publication are such as are calculated to produce the result condemned by the statute.” Under this relatively deferential test, the defendant’s criminal intent is inferred from the speech’s tendency to lead to violations of the law.
Five decades later the court effectively overturned this test in Brandenberg v Ohio (1969) holding,
The government cannot forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.
Debs v. United States, 249 U.S. 211,
In the Second case, Debs v United States (1919) Eugene V. Debs was the Socialist candidate for President. He gave a speech advocating for Socialism and declaring the war against Germany was unjustified. He too was prosecuted under the espionage act. Holmes wrote in his opinion, upholding the conviction, that obstruction of lawful government recruiting was not protected speech. Holmes wrote: “Deb’s purpose was to oppose not only war in general, but this wat, and that the opposition was so expressed that it’s natural and intended effect would be to obstruct recruiting.”
Abrams v. United States, 250 U.S. 616
Nine months later in October 1919 the Supreme Court decided Abrams v United States. In this case thee defendants urged factory workers who made munitions for the war to go on strike. The Court upheld the prosecution by a 7-2 vote. The Majority upheld the case because of the similarity this case had to Schenck and Debs.
Justice Clarke wrote,
The manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by brining upon the country the paralysis of a general strike, thereby arresting the production of all war munitions and other things essential to the conduct of the war.
Justice Holmes and Brandeis dissented saying this case did not cross the “Clear and present Danger” test from Schenck and Debs. “It is only the present danger of immediate evil or an attempt to bring it about that warrants Congress in setting a limit to the expressions of opinion where private rights are not concerned.” Holmes questioned whether the defendants even had an intention to interfere with the war effort. “It is evident from the beginning to the end that the only object of the paper was to help Russia and stop American intervention there against the popular government- not to impede the United States in a war it was carrying on.”
Holmes then gave us another memorable phrase in first amendment jurisprudence: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”
And this law is still persecuting people who have done nothing wrong except tell the truth. This is the act that Julian Assange is charged with violating for daring to operate under an assumption of freedom of the press. This is also the law Edward Snowden has been charged with violating for deciding it might be worth having a public interest debate about whether or not the American people are alright with a rogue security state that are violating just about every principle that once made this a great country.
If a new sedition act is passed it seems safe to assume that it will be passed much as the Sedition Act of 1918 was. As an amendment to the espionage act to broaden its powers. This is why it behooves us to look back to how this act was used in the past. I would especially encourage progressives, who are the people largely calling for new and expanded sedition laws to consider the fact the law passed a hundred years ago was signed by a progressive President, largely upheld by a progressive majority on the Supreme Court and that this law was immediately used against progressives and socialists. If progressives and other political groups who find themselves aligned with libertarians in the particular sense of existing outside the very narrow Overton window of Washington politics, where “acceptable political views” are narrowed exclusively to ideas that do not interfere with corporate agendas and the Military Industrial Complex- do you really believe new sedition laws will only be used to prosecute those on the right you disagree with?
We do have a number things working in our favor at the moment. I think that there is a memory in our national psyche that still vaguely understands sedition laws are dangerous weapons in the hands of insecure politicians. Sedition is the sort of crime weak governments enforce against their citizens when that government is facing an existential threat- or has convinced itself it is facing such a threat. Ironically, this memory may be the reason our insecure politicians are hesitating to pass such a law despite the military occupation of Washington DC showing clearly they believe they really do face an existential threat.
The other advantage is that few things cause as much dissent as the weaponization of laws against speech that is disliked by people in power. This was certainly the case in 1798 during one of the most shameful and nakedly partisan grabs at power in our history. The Alien & Sedition Acts. It also provides us with a great blueprint of how to fight these laws in the form of the Virginia & Kentucky resolutions.
The First Amendment was ratified in 1791. It provides, in part, “Congress shall make no law abridging the freedom of speech.” In this topic, we will study the original meaning of “the freedom of speech.”
In 1798, the Federalist-controlled Congress enacted the Sedition Act. The law made it a crime to,
write, print, utter or publish…any false, scandalous and malicious writing…against the government of the United States . . . with intent to defame the said government…or to bring them…into contempt or disrepute…or to excite against them…the hatred of the good people of the United States…
The Adams administration used the Sedition Act to prosecute its most strident and vicious opponents in the Republican party. At the time, Federalist-appointed judges dominated the federal judiciary. The Republican-controlled legislatures in Virginia and Kentucky issued resolutions declaring that the Sedition Act was unconstitutional. James Madison is credited with authoring the Virginia Resolution, and Thomas Jefferson is credited with writing the Kentucky Resolution. The Virginia Resolution declared that the Sedition Act is “unconstitutional.” But it did not claim the power to unilaterally “nullify” the Sedition Act. Instead, the Commonwealth enlisted the opinions of other likeminded states. Virginia also stated that the Commonwealth has “the right, and are in duty bound, to interpose for arresting the progress of the evil.” Through “interposition” the state government intervened to assert the rights of its people against the assertion of power by the federal government. “Interpose” was different from “nullification,” though one could favor both interposition and nullification. The Kentucky Resolution, thought to be authored by Vice President Jefferson, did use the term “nullification.” However, it is not clear that the proponents of the Kentucky Resolution believed that a federal law would become nonoperational because one state believed it to be unconstitutional.
Instead, the Resolution authorized a formal protest against the Sedition Act’s unconstitutionality. It provides, in part,
That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.
In 1800, James Madison wrote a lengthy report that defended the Virginia Resolution from its critics. In his report, Madison explained that there is a difference between when a state declares a law unconstitutional, and when a court declares a law unconstitutional. “The declarations,” by states “are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force.” The Virginia and Kentucky Resolutions illustrate how the Constitution is interpreted outside of the courts. This is an early example of a doctrine whose existence seems to be making a comeback known as “departmentalism.” I spoke about this in another recent piece published by the Libertarian Institute, “How Supreme Is The Supreme Court?”
In the election of 1800, Jefferson narrowly defeated Adams, in part due to the controversy surrounding the Sedition Acts. This election came to be known as the “Revolution of 1800.” As President, Jefferson pardoned those who had been convicted and imprisoned under the Sedition Act. In Madison’s report of 1800, he argued that the Sedition Act violated the First Amendment. His discussion illuminates two theories about the original scope of the right of freedom of speech. The first theory, the government cannot impose what is called “prior restraints” on the “freedom of speech.” In other words, people cannot be silenced in advance of speaking. But on this reading of the “freedom of speech.” People can still be punished for their speech after they speak according to the common law. In England, the right of freedom of speech could not be limited through “prior restraints.” We call this first theory the British theory of “freedom of speech.”
The second theory is distinctively American. And it was defended at length by James Madison in his report of 1800. Madison contended that the British conception of the freedom of speech was aimed only at prior restraints by the Crown. It did not limit the powers of Parliament, because, the British Parliament was considered supreme. This principle is called “parliamentary supremacy.” Madison contended that the U.S. Constitution rejected parliamentary supremacy. Under the American theory of popular sovereignty, Congress is also subject to the law of the Constitution—including the First Amendment. Therefore, federal legislation that punishes speech after the fact is also unconstitutional. Indeed, First Amendment begins, “Congress shall make no law…”
Under the American right of freedom of speech, then, it is unconstitutional for the government to constrain the exercise of free expression, both before and after the fact. At the time, the Supreme Court did not rule on the constitutionality of the Sedition Act. But today, the courts have accepted Madison’s interpretation as the original meaning of “freedom of speech.” For example, in New York Times v. Sullivan (1964), the Supreme Court favorably cited Madison and Jefferson’s criticism of the Sedition Act. As Justice Brennan wrote for a unanimous Court: “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”
A wonderful Jefferson anecdote—possibly anecdotal—from B. L. Rayner’s 1832 biography Sketches of the Life, Writings, and Opinions of Thomas Jefferson captures the his commitment to free speech and free press perfectly.
In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, “Why do you not have the fellow hung who dares to write these abominable lies?”
The President smiled at the warmth of the Baron and replied,
“What! hang the guardians of the public morals? No sir,—rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear anyone doubt the reality of American freedom, show them that paper, and tell them where you found it. Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the people’s rights, than arms or laws.”
“But is it not shocking that virtuous characters should be defamed?” replied the Baron.
“Let their actions refute such libels,” continued the President; “believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the people’s rights, have been so often wrecked.”
Continuing with Jefferson, now in a 1786 letter to John Jay, in summation,
Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it…Where the press is free and every man able to read, all is safe. To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement…
Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.