By Dan Siegel / Original to ScheerPost
Many on the left understandably enjoy the results of the criminal trials of the Proud Boys and Oath Keepers, and even some prison abolitionists make exceptions for the violent fascists who played stormtroopers in Donald Trump’s scheme to overthrow the 2020 election. The problem here is that the sedition law underlying the government’s attack on the far right could easily be aimed at progressive grassroots activists chanting at a city council meeting, as have similar laws in more than 200 years of U.S. history.
In the recent trials, Oath Keepers founder Stewart Rhodes and three of his followers were convicted of seditious conspiracy, obstruction of Congress, and conspiracy to obstruct. Four leaders of the Proud Boys, including former chairman Enrique Tarrio, were found guilty of the same crimes, as well as destruction of government property. A fifth Proud Boy, Dominic Pezzola, was the only one of the nine convicted who was found to have actually engaged in violence, assaulting a police officer. The maximum sentence for seditious conspiracy is 20 years. Rhodes was sentenced to 18.
Today’s version of the seditious conspiracy law, section 2384 of the U.S. criminal code, was passed in 1948. It forbids a host of acts, including the use of force to overthrow the government or waging war against it. But it also outlaws far more innocent activities, including using the use of force to “hinder, or delay the execution of any law of the United States.” Think of protestors linking arms to prevent oil drilling in pristine areas of Alaska or delaying federally sanctioned efforts to harvest redwood trees or whales or interfering with the arrests of Black Lives Matter activists blocking the doors of a federal facility.
Throughout U.S. history, laws like the current sedition act have frequently been abused for government mischief. In 1967, Stop the Draft Week activists staged protests to interfere with the military draft in front of the Oakland Induction Center. Their arguable crimes were all misdemeanors – unlawful assembly, blocking the street, refusing to disperse when ordered by the police. These “forceful” actions could have been targeted with the seditious conspiracy law. Instead, the Alameda County District Attorney, in his effort to up the ante, charged seven people he identified as leaders of the protest on felony charges of conspiring to commit misdemeanors. The Oakland Seven went to trial and were acquitted because the D.A. failed to prove that they had – or could – agree on anything.
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The Oath Keepers and Proud Boys cases demonstrate how easy it is for government prosecutors to win convictions of politically unpopular activists based upon their rhetoric and agitation, so long as it is directed towards obstructing government actions. Had the prosecution attempted to convict the Oath Keepers and Proud Boys of inciting violence, they would have had to
meet the much tougher standard articulated by the Supreme Court in the 1969 case, Brandenburg v. Ohio.
In Brandenburg, a Ku Klux Klan leader was
convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” The Supreme Court overturned Brandenburg’s conviction, ruling that the Constitution’s freedoms of speech and of the press do not permit a State to forbid advocacy of the use of force or of violating the law except where such advocacy is directed to inciting or producing “imminent lawless action and is likely to incite or produce such action.” The recent convictions under the federal seditious conspiracy law fall far short of this standard.
America’s misuse of sedition and criminal conspiracy laws goes back to 1798, when the Federalist majority in Congress passed the Alien and Sedition Acts. In what was probably his worst official action, President John Adams signed the four laws, which raised the residency requirement for immigrants seeking citizenship from five to 14 years and authorized the president to arrest, imprison, and deport aliens not deemed loyal to the United States, particularly for opposing the escalation of the “Quasi-War” with France.
Under the Sedition laws, it was a crime to “print, utter, or publish…any false, scandalous, and malicious writing” about the government. This law was enforced against newspapers and journalists who opposed war with France, namely supporters of Thomas Jefferson’s Democratic-Republican Party. Sixteen indictments naming at least 26 journalists resulted from the Sedition Act, and five out of six of the leading Republican papers were tried for libel. Several journalists spent time in jail.
These unpopular laws helped lead to Adams’ defeat when he ran for reelection in 1800, and they expired at the end of his term. Ironically, Adams opposed war with France, and his successful effort to avoid that conflict was one of the most important achievements of his presidency and long political life.
The Sedition Act of 1918, signed by Woodrow Wilson, ushered in the worst abuse of free speech in America’s history. The law extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds.
The 1918 Sedition Act was aimed at socialists, pacifists and other anti-war activists and imposed harsh penalties on anyone found guilty of making false statements that interfered with the prosecution of World War I; insulting or abusing the U.S. government, the flag, the Constitution, or the military; agitating against the production of necessary war materials; or advocating, teaching, or defending any of these acts.
Passage of the Sedition Act was orchestrated by Wilson’s Attorney General, A. Mitchell Palmer. The Act empowered Wilson and Palmer to conduct raids that led to the arrests of an estimated 10,000 pacifists, socialists, communists, and anarchists in late 1919 and early 1920 – after World War I ended! On the night of January 2-3, 1920, Palmer’s forces arrested and terrorized 4,000 people, pulling them from their beds and dragging them to jail. The government prosected 2,000 victims, none of whom were German spies or saboteurs. The U.S. deported 556 foreign citizens, including several prominent leftists.
One of the most famous prosecutions under the law was that of Eugene V. Debs, a pacifist labor organizer and founder of the Industrial Workers of the World (IWW). Debs ran for president in 1900 as a Social Democrat and in 1904, 1908 and 1912 on the Socialist Party of America ticket. He received one million votes in the 1912 campaign.
Debs was arrested after delivering an anti-war speech in June 1918 in Canton, Ohio. He was tried, convicted, and sentenced to 10 years in prison. Debs appealed the conviction, which was eventually upheld by the Supreme Court in a unanimous decision written by Oliver Wendel Holmes. The Court ruled that Debs intended to obstruct the war effort. Debs’ sentence was commuted in 1921 when Congress repealed the Sedition Act. Holmes apparently had second thoughts about the Debs decision. Within the year he wrote a strong defense of free speech in his dissent in another case brought under the 1918 law.
The Palmer raids also led to the prominence of J. Edgar Hoover, appointed in 1919 to head the Justice Department’s new General Intelligence Division, the forerunner of the FBI. The reactionary and racist Hoover led the FBI until his death in 1972. He used the organization to harass and sabotage progressive organizations, kept secret lists of political dissidents and blackmailed politicians who opposed his actions.
Hoover eventually served with Richard Nixon’s Attorney General, John Mitchell, who hatched an unsuccessful plan to round up and imprison anti-Vietnam War activists in the detention camps used to imprison Japanese Americans during World War II. Mitchell relied on the McCarran Internal Security Act of 1950, named after a right-wing Nevada senator and ally of Joseph McCarthy. The Act created the Subversive Activities Control Board, which required communist organizations to register with the Justice Department and provide data on their membership, finances, and activities. It also authorized the president, in an emergency, to arrest and detain persons who he believed might engage in espionage or sabotage.
America’s commitment to free speech has never been as strong as the words of the First Amendment suggest, and even this history could be suppressed in the current orgy of book banning. So, while you relish the prospect of watching Rhodes and Tarrio rot in prison for the rest of their lives, consider that you might wind up in the cell next door, doing time for seditious conspiracy after protesting the federal abortion ban implemented by a future president Trump or DeSantis.
Dan Siegel is a civil rights attorney in Oakland.