Sedition

Sedition. Also known as seditious libel, this crime initially covered any “dangerous words” threatening the authority of the state, the sanctity of its laws, or the reputation of its officers. Under the interpretation of seditious libel that emerged during the seventeenth century, judges determined the “law of the case” (whether a statement or publication was seditious), permitted juries to determine only the “facts of the case” (whether the defendant has expressed the words), and disallowed evidence of truth as a defense.

During the eighteenth century, an alternative interpretation emerged. The guarantees of freedom of speech and press, critics insisted, required that juries determine the seditious nature of political statements, and that truth constitute a defense. The Federalist party incorporated these ideas, which had emerged in the 1735 Zenger trial, into the Sedition Act of 1798. Jeffersonians tried under this law, however, found it useless to argue either the nonseditious quality of their words or their truth to Federalist judges and juries. Although some Jeffersonian lawyers argued that the First Amendment barred any federal prosecution for sedition, the Sedition Act expired in 1801 without a Supreme Court ruling on its validity.

Attempts to suppress dissent, especially during wartime, revived debates over the issue of sedition in the twentieth century. The 1918 Sedition Law restricted criticism of U.S. participation in World War I. The Smith Act (1940), passed on the eve of U.S. entry into World War II, made it a crime to advocate or teach the desirability of violently overthrowing the government. The Supreme Court upheld these laws' constitutionality but divided over how they should be applied. The more libertarian justices, building on Justice Oliver Wendell Holmes Jr.'s dissent in Abrams v. United States (1919), insisted that the government could criminalize political speech only if it posed a “clear and present danger” of “substantive” harm to the state. This position, suggesting that speech could not be criminalized solely on the basis of its allegedly dangerous content, remained contested, however, especially when the Court heard cases involving Communist party members during the 1950s.

Important rulings during the next decade, however, translated the libertarian position into constitutional doctrine. In two 1964 political libel cases (New York Times v. Sullivan and Garrison v. Louisiana ), the Court ruled that the Sedition Act of 1798 had violated the First Amendment's “core meaning”—“a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” In Brandenburg v. Ohio (1969), the Court held that only words intended to incite or produce “imminent lawless action” could, in light of the First Amendment, be the object of criminal sanctions. These decisions effectively denied the legitimacy of prosecuting “dangerous” political discourse, the core notion in the old crime of sedition.
See also Alien and Sedition Acts; Anticommunism; Bill of Rights; Censorship.

Bibliography

Harry Kalven Jr. , A Worthy Tradition: Free Speech in America, 1988.
Norman L. Rosenberg , Protecting the Best Men: An Interpretive History of the Law of Libel, 1990.

Norman L. Rosenberg