SEDITION

Sedition is a comprehensive term for offenses against the authority of the government not amounting to treason. Such offenses might include the spreading of disaffection or disloyalty, conspiracy to commit insurrection, or any subversive activity. Sedition tends toward treason, but does not reach the constitutionally defined offense of "levying war against the United States or adhering to their enemies, giving them aid and comfort."

Historically, the broad category of "sedition" has comprised several kinds of activity, although there has not always been consistency about which constituted criminal offenses. seditious libel, the uttering of words bringing the government or its officers into ridicule or disrepute, was an offense at common law and under the alien and sedition acts of 1798. Seditious membership, that is, active, knowing, and purposeful membership in an organization committed to the overthrow of the government by unlawful means, is an offense under the Smith Act. Seditious advocacy, the public promotion of insurrection or rebellion, and seditious conspiracy, combining with others to subvert the government, violate several statutory provisions; but those offenses must be very carefully defined lest the statutes exert a chilling effect on legitimate criticism of government.

The possibility of sedition poses a particular problem for constitutional democracy. Democratic governments, no less than any other kind, need to protect themselves against seditious activity. But measures taken in self-defense must not be so broad in their scope as themselves to become a threat to individual liberty. In the United States, the first amendment to the Constitution protects freedom of the press, and freedom of assembly and association; these specific constitutional guarantees limit the power of Congress and of the states to legislate against sedition.

For most of American history, the national and state governments exercised a concurrent power to define and punish sedition. The power of Congress to legislate against sedition does not derive from any of the specific enumerated powers, but is necessary and proper for the carrying out of several of them. In pennsylvania v. nelson (1956) the Supreme Court held that Congress, by enacting a pervasive scheme of regulation, had preempted the field of legislation concerning sedition against the United States.

Dennis J. Mahoney
(1986)