The Use of Sedition Laws Against Rioters Would Be Wrong

I have been critical recently of remarks attributed to Attorney General Bill Barr, including the alleged consideration of criminal charges against a mayor for not acting against rioters and the use of sedition charges against some individuals. The latter allegation was reinforced by the Associated Press after it obtained a memo to United States attorneys.  The memo suggests a more general use of sedition for anyone opposing government authority by force. Such a use of sedition laws directly threatens free speech values and would return to dark periods of the suppression of dissent in our country.  It is also entirely unnecessary given the array of ample and severe laws available to punish looters and rioters.

It is important to note that, while Barr has been criticized for his recent speech about “headhunting” individuals for criminal charges, the speech cuts both ways.  He was denouncing those on both sides who have sought to use the criminal code against political enemies. Some of us have long raised the same objections to both the Democrats and Trump calling for criminal charges.  It is also true that the Obama administration charged nine suspects under that same part of the law being referenced by the Justice Department.

The federal sedition provision at 18 U.S.C. 2384 reads:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

(June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 1, 70 Stat. 623Pub. L. 103–322, title XXXIII, § 330016(1)(N)Sept. 13, 1994108 Stat. 2148.)

I have been defense counsel in cases alleging crimes under this provision.

The Justice Department appears interested in using the language “oppose by force the authority” of the United States government to push sedition charges.  The memo cited as a hypothetical example “a group has conspired to take a federal courthouse or other federal property by force.” That sounds like Portland, Oregon.

The Justice Department has already been hitting rioters hard with criminal charges that bring lengthy sentences.  The use of sedition seems virtually gratuitous given those options. These protests are a mix of violent and nonviolent actors. Those who act violently have been charged with an array of serious offenses from battery to rioting to arson to conspiracy. When presented with a mix of such actors, the government has long used restraint and relied on conventional charges to avoid injecting heavily laden notions of sedition into the debate.

I recently discussed the use of these laws in testifying on Antifa.  I have been a long critic of Antifa but I have opposed declaring it a terrorist organization.  As I previously discussed, the United States has gone through repeated periods of crackdowns and criminalization of free speech. Early in the Republic, the anti-sedition laws were used to not only to intimidate but to arrest those with opposing views. The use of the Sedition Act by President John Adams and the Federalists was recognized at the time as not just an abuse, but as the height of hypocrisy. Adams and the Federalists routinely engaged in false and malicious writings about Jefferson, including declaring that, if elected, “Murder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of the distressed, the soil will be soaked with blood, and the nation black with crimes.” Thomas Jefferson and James Madison denounced the law, which made it illegal for anyone to “print, utter, or publish . . . any false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States . . .” Twenty-five leading Republicans were, arrested from journalists to politicians. All those convicted would later be pardoned by President Jefferson. The Sedition Act was never found unconstitutional, and, fittingly, expired on Adams’ last day in office as a lasting and indelible mark on his presidency.

We have used various laws to suppress dissent in our history.  We have emerged from these periods with regret, but we continue to return to the same impulse when confronted by groups like Antifa or its far right counterparts. Antifa is the most successful anti-free speech movement of our generation. It is winning in advancing its agenda to cancel or “deplatform” opposing views. The way to fight Antifa is not to adopt draconian measures like sedition with long histories of anti-free speech applications. That is what Antifa wants. They want the government to fulfill its stereotype. That is why this is a mistake. It is unnecessary, unwarranted, and unwise.

112 thoughts on “The Use of Sedition Laws Against Rioters Would Be Wrong”

  1. I think, just from memory, that Rowling’s chief concern arose from the practice of allowing minors, mostly girls, to begin irreversible changes to their bodies because of a fad.

    I think it is a fad for most of them. Boys and girls want attention, but different kinds of attention. Boys want attention in ways we all recognize. Girls tend to want sympathy and empathy and sex attention.

    In ancient Miletus girls and women began to commit suicide in shocking numbers. Each suicide was followed with a relatively glamorous funeral. Thales was asked what to do. He said make it a law that any female who commits suicide must have a public funeral with her body naked. The suicides stopped.

    A number of years ago one or more high schools in the North East had a rash of pregnancies. The girls apparently sought the attention, sympathy and care that was bestowed on the poor little dears who got pregnant. Another fad.

    The same thing seems to be happening with girls, particularly in the UK, these days. They see the attention that is bestowed on other girls who declared they are transgender and they are drawn to emulate it just as the girls in the rash of pregnancies and suicides had done.

    The shame, and tragedy, is that adults, politicians and medical people, go along with this delusional state rather than recognize it for what it is. I am reasonably sure that the vast majority of these kids will one day be horrified with what they have done to their lives.

  2. I don’t agree Mr. Turley. Woodrow Wilson used it and he had gen. Pershing fire 50 cal machine gun over the heads of WWI vets rioting for bonuses. And Pres. Eisenhower used Fed troops to allow balcks to attend white schools and colleges. Even President Obama used Fed troops.

    The violence and shooying of police officers is only taking place in Democrat run cities and states. Thus the mayor’s and governors of those cities and states are derelict in their duty to protect their cotizens and to enforce all laws, not selectively chose which laws they will support. The 500 plus riots in some 200 cities have destroyed billions in property and many lives. The perpetartors and the enablers need held accountable> are you going to volunter to pay for people’s damages when you live in another city & state? I’m not! Look up the Hard Hat rebelion in NYC in 1970? You will see NYC HardHhat construction workers easily tamed the rioting & destrucive kids like Antifa elite gen X. Solve the problem in 3 cities and states by arresting them and enforcing $1 million in CASH BAIL NO EXCEPTIONS. TRY THEM FOR THE CRIMES THEY COMMITTED. AND THIS WILL STOP. TRY AT LEAST 1000 RIOTERS PER TOWN. BANKRUPT THE CRIMINAL ACTIVISTS. And the mayors and governors enabling.

  3. Perhaps Mr. Turley would prefer a terrorism charge leveled in place of sedition?

    According to 6 USCS § 101, the term terrorism is “any activity that–

    (A) involves an act that–

    (i) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and

    (ii) is a violation of the criminal laws of the United States or of any State or other subdivision of the United States; and

    (B) appears to be intended–

    (i) to intimidate or coerce a civilian population;

    (ii) to influence the policy of a government by intimidation or coercion; or

    (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.”

    This would seem to be an entirely appropriate charge against the rioters – they have acted dangerously to human life, they have violated state and federal laws, and have attemted to both intimidate civilian populations and influence the policies of local, state, and federal governments by intimidation.

  4. “Some protestors are violent, some are peaceful.” For each violent protestor arrested and convicted, how many do readers think are never arrested? I estimate 25.

  5. There was a time after Cornwallis surrendered, and after the Treaty of Paris (1783) when many powerful Americans of means still felt they were better off under British colonial rule. And, the new States were weak and disorganized, and crime was rampant. There were those loyalists who were prepared for the patriots to fail in organizing effective government. What do you suppose their preferred alternative was if the new entities failed?

    It wasn’t until after the War of 1812 that the loyalties Americans re England were a settled issue. The stalwart British loyalists had moved to Canada. Therefore, the nascent Republic did face a threat of falling back into the grip of London during those 21 years. There wasn’t an FBI Counterintelligence branch. The US military had been virtually disbanded in debt after Yorktown. (Hamilton and Washington had to rebuild it from scratch when resistors in Western PA refused to pay liquor taxes to the Federal Govt.).

    Given the uncertainties of the time, the Alien and Sedition Acts were prudent. Only in hindsight do they appear overkill.

    Are we not in a similar dilemma now, with foreign adversaries working to disrupt our democratic process of selecting leadership?
    I believe it’s better to be safe than sorry. I’m with AG Barr, and look forward to catching anarchist organizers and throwing the book at them. The radical left and right both sense that government is weak, and not diligent about law enforcement.

  6. “A UNIFORM TIME FOR HOLDING ELECTIONS”

    To obtain or cast a ballot before “…the Tuesday next after the first Monday in the month of November…” is a crime in violation of the Act of the 28th Congress “…to establish a uniform time for holding elections…”
    _____________________________________________________________________________________________________________________________________________________________________

    ELECTION FRAUD BY DEMOCRATS BEGINS BEFORE ELECTION DAY

    “Early Voting Begins in Four States”

    Voters have started casting ballots in Virginia, Wyoming, South Dakota and Minnesota, where both Joe Biden and President Trump will campaign today. A poll by The Times found G.O.P. senators struggling in key battleground states.

    – New York Times
    ______________

    “On the first day of early voting, Virginians wait up to four hours to cast ballots”

    – The Washington Post
    __________________

    “Count on it: Election Day voting in Minnesota starts now”

    – MPR News
    __________

    “…the Tuesday next after the first Monday in the month of November:…”
    _________________________________________________________

    ACTS OF THE TWENTY-EIGHTH CONGRESS OF THE UNITED STATES,

    Passed at the second session, which was begun and held at the City of Washington, in the district of Columbia, on Monday, the 2d day of December, 1844, and ended the 3d day of March, 1845.

    JOHN TYLER, President of the United States. WILLIE P. MANGUM,President of the Senate, pro tempore. JOHN W. JONES, Speaker of the House of Representatives.

    STATUTE II.

    CHAP. I.– An Act to establish a uniform time for holding elections for electors of President and Vice President in all the States of the Union.(a)

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the electors of President and Vice President shall be appointed in each State on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed: Provided, That each State may by law provide for the filling of any vacancy or vacancies which may occur in its college of electors when such college meets to give its electoral vote: And provided, also, when any State shall have held an election for the purpose of choosing electors, and shall fail to make a choice on election.the day aforesaid, then the electors may be appointed on a subsequent day in such manner as the State shall by law provide.APPROVED, January 23, 1845.

    1. If you vote by absentee ballot, the U.S. postal service is not required to cancel stamped mail. This change was made in 2019 to speed up mail processing.

      So, if you drop your ballot in a blue box and it does not get to your election board by their physical deadline, it most likely will not have a postmark indicating when it was mailed.

      North Carolina election officials are including information for absentee voters. 1. Take it to the election board office if pose ble before deadline. 2. Take it to the post office and request the postal worker to manually cancel and time stamp when it was mailed.

      If you can not do either of these, there is no guarantee your vote will get counted.

  7. The federal sedition provision at 18 U.S.C. 2384 reads:

    Why do you suppose this law still exists? Is it a bad law? At what point should should we take these anarchists at their word? At what point do we match their words to their actions? Are you seeing existing laws as being an effective deterrent? I certainly don’t.

    Here’s how I see it. I used to work at a command that conducted training exercises that simulated the combat signatures of the enemy. It’s one thing to know what to look for, but it’s a completely different thing to know what to do about it. Is a signal intended to deceive while the attack is coming from a different direction. Does the signal indicate an isolated threat, or is it part of a larger and more coordinated attack. The enemy already knows what our countermeasures are. If they know what limits our rules of engagement are, then they will use that against us.

    Which brings me back to our approach to fighting the spreading anarchy. These are not merely disgruntled citizens wanting their voices heard so as to make this country a better place to live. Using their own words, they are enemies to our way of life. They are exploiting our existing laws, because they have those with the duty to enforce them, not enforcing them. It would be no different than having ships in our battle group that refuse to detect and engage the enemy.

    We’re well beyond any pretense that these anarchists need 1st amendment protections. They need to be treated as the enemy of the state that they are. I don’t care if we pursue RICO or sedition statutes. I don’t care if they are right-wing or left. If we don’t engage them now, then all we’re doing is giving them the rope to hang us all with.

  8. Sort of like exploiting a law for the exact opposite reason – mission creep. A good example is the “Espionage Act of 1917”. Since 1917, the law has been used against non-spies, having absolutely nothing to do with the intended purpose. Journalists and legal whistleblowing is not the equivalent of a foreign spy intending harm. Usually to coverup embarrassing things, not what it was intended for. More than 90% of these abuses happened since 2001, not between 1917 through 2000. The average American loses faith in the justice system when these types of mission-creep happen. Another huge abuse was of power was the Alien & Sedition Acts, also exploited by officials in the 19th Century.

  9. Completely disagree. It’s a Marxists Revolution, they seek to destroy the Republic.

    I’ll take it a step farther. Military Tribunal. It’s SEDITION! ANTIFA is a domestic enemy and should be dealt with accordingly!

    Drive a rifle or ride a rail car.

    Marxist murdered 120 million people in the Twentieth Century.

    It’s a Colour Revolution WAKE UP!

  10. JT, I agree that using sedition laws falls into the narrative that Antifa wants.

    But regarding this:

    “It is also entirely unnecessary given the array of ample and severe laws available to punish looters and rioters.”

    Yes there are, but those “severe laws” have not been enforced, and even worse, many of the small minority of perpetrators who have been arrested have been released without even having to post bail thanks to the whackjob Mayors in the cities where they were arrested.

    That has to stop.

  11. There are many laws on the books, both state and federal that can be used. Sedition should be reserved for the most egregious conduct and the riots are nit one.

  12. “The Use of Sedition Laws Against Rioters Would Be Wrong”

    – Professor Turley
    _______________

    How about the use of censorship by Feminazi fascists against actual Americans?

    Lincoln suspended Habeas Corpus!
    _____________________________

    America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

    President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”
    _________________________________________________________________________________________________________________________________

  13. The state of 2020: Turley regularly rails on how to do the most damage to the anti fascists while grudgingly admitting that perhaps a 17 year old police cadet wannabe killing people in the streets with live gunplay may have crossed a line.

    1. the boy went into the storm with good intentions and got attacked. he used lawful means of self defense and came out a man

      he will be acquitted

      1. If the boy’s intentions were good, he wouldn’t have carried a weapon that’s illegal for a kid his age.
        If the boy’s intentions were good, he wouldn’t have illegally carried a weapon across state lines.

        Only someone who is in denial would claim that his means were lawful.

        As to whether he’ll be acquitted, we’ll have to wait to hear all of the testimony. Was he acting in self-defense, or was he attacked because he was already using his gun, and his attackers were the ones acting in self-defense?

        1. A 17 year old can legally open carry a “long gun” in WI. “Open carry of loaded handguns and long guns and knives is permitted without a license for adults over 18, or for minors 16 or older when carrying a long gun that doesn’t violate WS 941.28. Gun laws in Wisconsin – Wikipedia”

          A WI resident legally gave him the rifle. He crossed no State line with a weapon.

          Only a liar would carefully watch the many videos and claim he was not defending himself. In the first killing the deceased lobbed a Molotov cocktail at the shooter, and just before the shooter discharged his rifle another Antifa scum (sorry, redundant) discharged a hand gun about 40′ behind the shooter, in the direction of the 17 year old shooter. In the 2nd killing the shooter was battered with a skate board (shooter killed him than God) and another man attempted to kill the 17 year old with a hand gun. The 17 year old thankfully incinerated the shooting bicep of the man with a hand gun.

          Play stupid games, win stupid prizes like a dirt nap.

          1. Princess, it is illegal to open carry in WI if you’re under 18, so a WI resident could not legally gave him the rifle, and if it was given to him in WI, then he illegally carried it back to IL, where it was surrendered to police.

            Only a liar would suggest that what occurred before the video starts is irrelevant.

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