The Modern Scope of US Seditious Conspiracy Law

The concept of sedition is one of the oldest and most controversial in criminal law, representing the tension between national security and fundamental rights like free speech. In the United States, while the broad crime of sedition has been significantly narrowed by decades of Supreme Court jurisprudence, the serious federal offense of “seditious conspiracy” remains a powerful tool for prosecuting plots to violently undermine the government. Understanding the modern scope of this law requires a clear look at its statutory elements, its history, and the constitutional limits imposed by the First Amendment.

The Current Federal Offense: Seditious Conspiracy (18 U.S.C. § 2384)

Today, the most common federal charge related to sedition is Seditious Conspiracy, outlined in 18 U.S.C. § 2384. This is a distinct and serious felony, punishable by fines and up to 20 years in federal prison.

Key Elements of Seditious Conspiracy

For a conviction under 18 U.S.C. § 2384, federal prosecutors must prove that two or more persons conspired to commit one of the following acts by force:

• Overthrow or Destroy the Government: Conspiring to overthrow, put down, or destroy by force the Government of the United States.
• Levy War: Conspiring to levy war against the government.
• Oppose Authority: Conspiring to oppose by force the authority of the government.
• Hinder Execution of Law: Conspiring by force to prevent, hinder, or delay the execution of any law of the United States.

Sedition Law and the First Amendment: The High Bar for Speech

The U.S. Constitution’s First Amendment provides broad protection for free speech and political dissent. This protection creates a high legal threshold for prosecuting speech under sedition laws.

The Brandenburg Test

In 1969, the U.S. Supreme Court case of Brandenburg v. Ohio established the current standard, which severely limits the government’s ability to criminalize speech that is critical of the government. The Court ruled that speech can only be criminalized if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

A Controversial History of Sedition in the United States

The application of sedition laws has historically been linked to times of national crisis and political tension, often resulting in laws that were later viewed as unconstitutional infringements on civil liberties.

Key Historical Sedition Acts in US History

Act	Year	Significance
Alien and Sedition Acts	1798	Criminalized “false, scandalous, and malicious writing” against the government. Directed at political opponents (Democratic-Republicans). Expired in 1801 and convictions were later pardoned.
Sedition Act of 1918	1918	An extension of the Espionage Act, criminalized spoken or written language disloyal to the U.S. government, flag, or military during WWI. Largely repealed in 1920.

Clarifying Related Offenses: Sedition, Insurrection, and Treason

While often used interchangeably in common conversation, seditious conspiracy is a distinct crime from insurrection and treason under federal law.

• Seditious Conspiracy (18 U.S.C. § 2384): The agreement or plan (conspiracy) between two or more persons to use force to overthrow the government or oppose its authority.
• Rebellion or Insurrection (18 U.S.C. § 2383): The actual act of inciting, setting on foot, assisting, or engaging in a rebellion or violent uprising against the authority of the United States or its laws.
• Treason (U.S. Constitution, Article III, Section 3): The most serious offense, consisting only of levying war against the U.S. or adhering to its enemies, giving them aid and comfort. Treason is the only crime defined in the U.S. Constitution and requires a much higher burden of proof (testimony of two witnesses to the same overt act).

Summary: Navigating the Complexities of Sedition Law

The sedition law in the United States, primarily through the seditious conspiracy statute, is a seldom-used but profoundly serious federal criminal charge. Its use is limited by a high standard of proof regarding the conspiracy to use force, reflecting the nation’s robust commitment to protecting First Amendment rights.

1. Seditious conspiracy is codified in 18 U.S.C. § 2384 and criminalizes a conspiracy to overthrow the government or prevent the execution of federal law by force.
2. Conviction requires proof of a planned, forceful action, not just unfavorable comments or general advocacy of violence, which are typically protected as free speech.
3. The Supreme Court’s “imminent lawless action” test sets a demanding bar for prosecuting speech-related conduct, ensuring that political dissent remains protected.
4. Historically, sedition acts have been controversial, leading to significant political debate over the balance between national security and constitutional rights.

Frequently Asked Questions (FAQ)

Is sedition the same as treason?

No. Treason is defined specifically by the U.S. Constitution as levying war against the U.S. or giving aid to its enemies, requiring two witnesses to an overt act. Sedition or seditious conspiracy (18 U.S.C. § 2384) is a lesser federal crime involving a conspiracy to use force to oppose the government’s authority.

What is the difference between seditious conspiracy and insurrection?

Seditious conspiracy is the plan or agreement to act by force (18 U.S.C. § 2384). Insurrection (18 U.S.C. § 2383) involves the actual incitement or engagement in a rebellion or violent uprising.

Does criticizing the President or Congress count as sedition?

No. Simple criticism, even harsh or defamatory criticism, is broadly protected under the First Amendment’s guarantee of free speech. Sedition is criminal only when it involves a conspiracy to use force to impede or overthrow the government, meeting the high bar of “inciting or producing imminent lawless action”.

When was the last significant sedition law passed in the U.S.?

The original Sedition Act of 1798 expired in 1801, and the Sedition Act of 1918 was repealed in 1920. The current law for seditious conspiracy (18 U.S.C. § 2384) has been on the books for a long time but has been subject to various amendments and reinterpretations, severely limited by First Amendment jurisprudence, particularly since the 1969 Brandenburg ruling.

What is the penalty for seditious conspiracy?

Seditious conspiracy (18 U.S.C. § 2384) is punishable by a fine and imprisonment for up to twenty years.

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