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What Does 'Sedition' Mean for Protestors?

WASHINGTON, DC - JUNE 03: Demonstrators march away from the White House during a peaceful protest against police brutality and the death of George Floyd, on June 3, 2020 in Washington, DC. Protests in cities throughout the country have been held after the death of George Floyd, a black man who was killed in police custody in Minneapolis on May 25.  (Photo by Win McNamee/Getty Images)
By Andrew Leonatti on September 21, 2020 10:32 AM

The right to speak out and assemble with others in protest is enshrined in the First Amendment for a reason. It is one of the most crucial rights ensuring the U.S. remains a "free" country. Protesting your government's actions should not and does not make you an enemy of the state.

So what does it mean when the attorney general says that some protestors should be charged with sedition? Should you be worried about attending a protest that has the potential to turn violent? Could you face these serious federal criminal charges for attending a protest?

Barr Wants Prosecutors to Get Tough

After a summer of protests in Minneapolis, Portland, Chicago, Kenosha, and many other cities across the country, federal authorities are making arrests on terrorism-related charges related to looting and arson.

But Attorney General William Barr allegedly told federal prosecutors last week to get tougher on protestors, encouraging the use of a federal sedition law against protestors who engage in violent crimes or rioting. Barr has been critical of local prosecutors in many of these cities for going "easy" on protestors who break the law.

The unearthing of Barr's comments led to widespread condemnation from civil liberties advocates. Noted Fox News personality Andrew Napolitano, a former judge, called it "a bridge too far."

Sedition Defined

"Sedition" is a broad term in U.S. law. It refers "to the act of inciting revolt or violence against a lawful authority with the goal of destroying or overthrowing it." According to federal law, "seditious conspiracy" occurs when two or more people:

  • Conspire to overthrow or destroy the U.S. government or make war against it
  • Use force to oppose the U.S. government's authority
  • "Take, seize, or possess by force" any federal property
  • "Prevent, hinder, or delay by force" any enforcement of U.S. laws

In a Justice Department memo issued after Barr's comments, Deputy Attorney General Jeffrey Rosen wrote that the portion of the statute referring to taking federal property or stopping law enforcement officers from carrying out their duties were sufficient for sedition charges against some protestors. In fact, Rosen wrote that the sedition law "does not require proof of a plot" to overthrow the government for its application.

Past Uses of Sedition Laws

While sedition charges are rare, they do have a chilling history. The original Sedition Act of 1798 made it easier for the young U.S. government to deport, fine, or imprison anyone who published "false, scandalous, or malicious writing" against the government.

The Espionage Act of 1917 made it a federal crime with up to 20 years in prison for willfully spreading false news of U.S. Army and Navy operations. The Sedition Act of 1918 expanded the law further during World War I, criminalizing statements criticizing the federal government. That law was — thankfully — repealed.

Over the years, sedition laws have been used against Puerto Rican separatists, white supremacists, Muslim terrorists, and a Christian militia.

Should Protestors Worry?

There is no doubt that many protests this summer have turned violent. In Seattle and Portland, protestors have tried to set fire to and overtake federal buildings. Several protestors in Minneapolis set fire to a police department precinct headquarters.

But is it fair to equate protestors upset about police killings of Black Americans to groups actively trying to separate from or overthrow the U.S. government?

"There's nothing wrong with aggressive prosecution. In the face of violence in the street that is destroying government property, private property, and injuring individuals, that's what the government should do," Napolitano said. "But this is not the case for sedition."

With ongoing police shootings earning headlines and many fearing election-season violence, protestors should be aware of what could be at stake. Even if federal judges are not interested in sedition charges against protestors, that does not mean the federal government will not try to use those charges to get convictions.

If you are intent on exercising your First Amendment rights at a protest, be aware of your surroundings. And if a protest turns violent, consider leaving the area as quickly as possible.​ It would also be wise to memorize or write down the number of a criminal defense lawyer you want to contact if you are arrested.

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