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.
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.