Seditious Conspiracy: A Fake Crime and a Danger to Free Speech

A presentation from "Censorship and Official Lies: The End of Truth in America?" This event was co-hosted by the Mises Institute and the Ron Paul Institute, and recorded in Lake Jackson, Texas, on April 13, 2024.

Full Written Text (Audio link is above): 

Over the past three years, the word “sedition” has again become popular among regime agents and their friends in the media. It’s certainly not the first time the word has enjoyed a renaissance. It’s frequently employed whenever the ruling class wishes us to become hysterical about various real and imagined enemies, both domestic and foreign.

This time, the regime’s paranoia about sedition was prompted by the Capitol Riot in January 2021, when we were told that Trump supporters nearly carried out a coup d’etat. Since then, regime operatives have frequently referred to Trump supporters and Trump himself as seditionists.

Yet, out of the approximately 850 people charged with crimes of various sorts, only a very small number have been charged with anything even close to treason or insurrection. Rather, most charges are various forms of infractions related to vandalism and trespassing. However, because these charges have to do with the regime’s sacred office buildings, the penalties are outrageously harsh compared to similar acts, were they to occur on private property.

For a small handful of defendants, however—the ones the Justice Department has most enthusiastically targeted—the federal prosecutors have brought the charge of “seditious conspiracy.”

Why not charges of treason, rebellion or insurrection? Well, if federal prosecutors though they could get a conviction for actual rebellion, insurrection, or treason for the January 6 riot, they would have brought those charges.

But they didn’t.

What they did do is turn to seditious conspiracy, which is far easier to prove in court, and is—like all conspiracy charges in American law—essentially a thought crime and a speech crime. Seditious conspiracy is not actual sedition, or rebellion, or insurrection. That is, there is no overt act necessary, nor is it necessary that the alleged sedition or insurrection actually take place or be executed. What really matters is that two or more people said things that prosecutors could later claim were part of a conspiracy to do something that may or may not have ever happened.

Moreover, the regime now routinely employs other types of conspiracy charges for prosecuting Americans supposedly guilty for various crimes against the state. At the moment, for example, Donald Trump faces three different conspiracy charges for saying that the 2020 election was illegitimate.

As we shall see, purported crimes like seditious conspiracy are crimes based largely on things people have said. They are a type of speech crime.  

Now, some may ask how that is even possible if there is freedom of speech in this country.

Contrary to what a naïve reading of the First Amendment might suggest, the federal government has never been especially keen on respecting the right to free speech.

The federal government has long sought tools to get around the First amendment, and one of them is seditious conspiracy.

Now, the term seditious conspiracy contains two pieces. There’s the sedition part, and there is the conspiracy part. Let’s explore both parts of this in a bit more detail to see what we can learn about this inventive way the regime has developed to silence those who question the legitimacy of the American state.

Seditious Conspiracy Was Invented to Get Around Limitations on Treason Prosecutions 

From the very beginning, federal politicians have sought ways to create political crimes above and beyond the Constitution’s very limited definition of treason.

 This began with the Sedition Act of 1798, and continued with the creation of the Seditious Conspiracy law in 1861, and carried on through to the Sedition Act of 1918, and the Smith Act of 1940, and a plethora of various types of “conspiracy” laws used to punish many different types of antiwar and dissident activities since then.

All of these laws, involve restrictions on freedom of speech, and open up suspects to punishments for saying things.

The reason why federal politicians believe they need extra sedition laws on top of treason can be found in the fact that the framers of the Constitution defined treason in very specific and limiting terms:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Note the use of the word “only” to specify that the definition of treason shall not be construed as something more broad than what is in the text. As with much of what we now find in the Bill of Rights, this language stems from fears that the US federal government would indulge in some of the same abuses that had occurred under the English crown, especially in the days of the Stuart monarchs. Kings had often construed “treason” to mean acts, thoughts, and alleged conspiracies far beyond the act of actually taking up arms against the state.

Treason could have been anything the king didn’t like, and it how you end up with a situation in which St. Thomas More was executed for treason simply for refusing to say that the king was head of the church.

By contrast, in the US Constitution, the only flexibility given to Congress is in determining the punishment for treason.

Naturally, those who favored greater federal power chafed at these limitations and sought more federal laws that would punish alleged crimes against the state. It only took the Federalists ten years to come up with the Alien and Sedition Acts, which stated:

That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States … or to impede the operation of any law of the United States, … from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor.

Note the references to “intent,” “counsel,” and “advise” as criminal acts so long as these types of speech are employed in a presumed effort to obstruct government officials. In the twentieth century, we will again see this type of language designed to ensnare Americans in so-called crimes of conspiracy.

A great many Americans—some of whom who still took the radical liberalism of the revolutionary era seriously—saw the Sedition Act for what it was. A blatant assault on the rights of Americans, and an attack on freedom of speech. Thanks to the election of Thomas Jefferson in 1800 the Sedition Act was allowed to expire,

Then, for sixty years, the United States government had no laws addressing sedition on the books. But the heart of the 1798 Sedition Act would be revived. As passed in July 1861, the new Seditious Conspiracy statute stated

that if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force, the Government of the United States, or to oppose by force the authority of the Government of the United States; or by force to prevent, hinder, or delay the execution of any law of the United States; or … prevent any person from accepting or holding any office, or trust, or place of confidence, under the United States. . . . Shall be guilty of a high crime.

Note the crimes here are not overt acts like “overthrowing the government” of “delaying the execution of a law.” No, the crime here is conspiring to do something about it. That is, saying things about it to another person. That is what constitutes “conspiracy” here.

Now, some people who have a rather benign view of the state might think, well, people shouldn’t conspire to do bad things. Well, in real life, conspiracy as prosecuted, does not necessarily look like a group of bad guys getting together in a dark room and explaining how they’re going to blow up some government building. That’s Hollywood stuff.

In real life, people can be found guilty of conspiring with people with whom they have never been in the same room, or with whom the "conspirator" expressed any actual violent intent.

We’ll return to this, and this is just something to keep in mind, whenever looking at government conspiracy laws.

Given the timing of the seditious conspiracy legislation that I just read—i.e., in 1861, following the secession of several Southern states—it is assumed that the legislation originated to address alleged Confederate treason. This is not quite the case. The legislation did enjoy considerable support from those who were especially militant in their opposition to the Confederacy. However, Rep. Clement Vallandigham of Ohio—who would later be exiled to the Confederacy for opposing Lincoln’s war—supported the bill precisely because he thought it would help punish opponents of the fugitive slave laws.” Congress had initially become serious about punishing “conspiracies” not in response to Southern secession, but in response to John Brown’s 1859 raid at Harper’s Ferry.

Thus, there was support for the idea in the South before the war. Soon thereafter, however, the Confederate secession and fears of rebellion helped enlarge the coalition in favor of a new sedition law. The new sedition law represented a significant expansion of the idea of “crimes against the state.” Senator Stephen Douglas, the bill’s sponsor understood this perfectly well, stating

You must punish the conspiracy, the combination with intent to do the act, and then you will suppress it in advance. … If it be unlawful and illegal to invade a State, and run off fugitive slaves, [a reference to John Brown] why not make it unlawful to form conspiracies and combinations in the several States with intent to do the act?

Others were more suspicious of expanding federal power in this way, however. Sen. Lazarus Powell and eight other Democrats presented a statement opposing the passage of the bill. Specifically, Powell and his allies believed the new seditious conspiracy law would be a de facto move in the direction of allowing the federal government to expand the definition of treason offered by the federal constitution. The statement read:

The creation of an offense, resting in intention alone, without overt act, would render nugatory the provision last quoted, [i.e., the treason definition in the Constitution] and the door would be opened for those similar oppressions and cruelties which, under the excitement of political struggles, have so often disgraced the past history of the world.

Powell is here describing what George Orwell would later call a “thoughtcrime.” This “crime” Powell tells us, rests “in intention alone, without overt act.” To anyone who actually valued freedom in 1861, this would set off major alarm bells.

Even worse, Powell saw that the new legislation would provide to the federal government “the utmost latitude to prosecutions founded on personal enmity and political animosity and the suspicions as to intention which they inevitably engender.”

Like so many political crimes invented by regimes, the legislation tends to grant unusual flexibility and discretion in prosecuting the state’s perceived enemies. 

This opens up political dissidents to new kinds of prosecution.

Such legislation COULD have been used against opponents of the fugitive slave acts, as well as against opponents of federal conscription during the war. After all, opponents of both the Civil War draft and the Vietnam War draft “conspired” to destroy government property—as with the heroic draft-card burnings of the Catonsville Nine, for example.

It would be far harder to prove in court that such acts constituted treason, so sedition laws have paved to way for more frequently prosecuting various acts of resistance against the regime and its crimes.

It's bad enough that federal policy makers schemed to insert into federal law new crimes against the state. But, as Powell correctly noted, the greater danger is in the part of the sedition law that enables prosecutions for conspiracy.

What Is Conspiracy?

So now we look at the other component of seditious conspiracy: the conspiracy part.

Now conspiracy laws are used far more broadly than for political crimes. They are also used in the war on drugs and countless other federal legal crusades.

Current federal conspiracy laws outlaw conspiracy to commit any other federal crime. Other provisions include conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether the conspiracy accomplishes its objective.

This latter point is an important distinction. As was explicit in the Sedition Act of 1798, so it is today: it is not necessary that the defendant charged with conspiracy harm anyone —i.e., that there be any actual victim. Indeed, conspiracy charges act as a way of charging individuals with crimes that might occur, but have not.

Moreover, it is not even necessary in all cases that a "conspirator" take any affirmative steps toward completion of the alleged conspiracy. While it is true that some federal conspiracy statutes require at least one conspirator to take some affirmative step in furtherance of the scheme, It is also the case that Many have no such explicit overt act requirement. Even in those cases where some "affirmative step" or overt act take place, it is not necessary that the act be illegal. The "act" could be publicly stating an opinion or making a phone call.

In a 2019 interview with the Mises Institute, Judge Andrew Napolitano highlighted his own problem with conspiracy charges:

If it were up to me, there would be no such thing as conspiracy crimes because they are thought crimes and word crimes. But, at the present time in our history and in fact, for all of our history, regrettably, an agreement to commit a felony, agreement by two or more people or two or more entities to commit a felony and a step in furtherance of that agreement, constitutes an independent crime. ... In the world of freedom, where you and I and people reading this live, conspiracy is a phony crime. For 600 years of Anglo-American jurisprudence, all accepted [that] crime contained an element of harm. Today, crime is whatever the government says it is.

Napolitano is right, and the fact that crime is whatever the government says it is becomes apparent in one of the other key problems with conspiracy laws. Namely, as one legal commentator put it, “few things [are] left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal.”

That is, at what point do a bunch of people talking about things become a criminal act. The law is very vague on this, and it is why it’s not so easy to say “well, golly, I won’t ever be prosecuted for conspiracy, because I don’t plan to do anything illegal.

But you are not safe because it is not clear in the law, at what point, statements encouraging legal activities become illegal —or statements encouraging legal activities, but without real criminal intent, become felonies.

So, you can imagine yourself mouthing off unseriously and saying “we oughta burn down the offices of the department of education.” And then your friend texts back and says “I agree.” Well, congratulations, a prosecutor could easily use that exchange as a way of building a case for conspiracy against you.

Would a single expression of an opinion against the regime be enough to convict? Probably not, but combined with other unrelated acts and legal activities such as a stated plan to visit Washington DC or buy a gun for unrelated activities, a prosecutor could, with enough convincing, tie them together in the minds of jurors to get a conviction for conspiracy.

Legislators and the courts have never been able to provide any objective standard of when these disconnected, and often legal acts become crimes, and thus, prosecutors are afforded enormous leeway in stringing together a series of acts and claiming these constitute a conspiracy. For an indictment, the prosecutor merely need convince a grand jury that legal acts are really part of an illegal conspiracy. This is not difficult, as noted by Judge Solomon Wachtler when he cautioned that district attorneys could convince grand juries to "indict a ham sandwich."

Not surprisingly, people who are actually concerned about regimes abusing their power have long opposed conspiracy prosecutions.

For example, Clarence Darrow wrote on conspiracy prosecutions in 1932, concluding "It is a serious reflection on America that this wornout piece of tyranny, this dragnet for compassing the imprisonment and death of men whom the ruling class does not like, should find a home in our country."

Darrow was at least partly joined in this opinion several years earlier by Judge Learned Hand who in 1925 described conspiracy charges as "that darling of the modern prosecutor's nursery" for the way it favors prosecutors over defendants.

Crimes of Thought and Speech Vaguely Defined

Conspiracy crimes have been a favorite of government prosecutors in going after political opponents historically.

And, In the wake of the Vietnam War and the federal government's many attempts to prosecute antiwar protestors and activists for various crimes, many legal scholars took a closer look at the nature of conspiracy charges. Many were skeptical that conspiracy charges are either necessary or beneficial. The elastic and vague nature of conspiracy "crimes" means that, as legal scholar Thomas Emerson puts it, "the whole field of conspiracy law is filled with traps for the unwary and opportunities for the repressor."

One of the more famous cases of conspiracy prosecutions running amok was the 1968 prosecution and trial of American pediatrician and antiwar activist Benjamin Spock. Spock and four others were charged with conspiring to aid, abet, and counsel draft resisters. That is, they were charged with saying things. Although prosecutors could never show the "conspirators" committed any illegal acts—or were ever even in the same room together—Spock and three of his "co-conspirators" were found guilty in federal court. The case was eventually set aside on appeal, but only on a legal technicality.

Spock was able to avoid prison, but countless others have not been so lucky. Defendants who do not enjoy Spock's level of fame or wealth continue to find themselves locked in cages for saying things federal prosecutors don't like.

The legal incoherence of the charges laid against Spock—and against antiwar activists in general—was covered in detail in Jessica Mitford's 1969 book The Trial of Dr. Spock, in which she writes

The law of conspiracy is so irrational, its implications so far removed from ordinary human experience or modes of thought, that like the Theory of Relativity it escapes just beyond the boundaries of the mind. One can dimly understand it while an expert is explaining it, but minutes later, it is not easy to tell it back. This elusive quality of conspiracy as a legal concept contributes to its deadliness as a prosecutor's tool and compounds the difficulties of defending against it.

Mitford further draws upon Darrow to illustrate the absurdity of these prosecutions, pointing out that Darrow described conspiracy laws this way: if a boy steals a piece of candy, he is guilty of a misdemeanor. If two boys talk about stealing candy and do not, they are guilty of conspiracy—a felony.

Again, we find that the foundation of conspiracy laws are thoughts and words, rather than any actual criminal acts. Or, as legal scholar Abraham Goldstein put it in 1959: "conspiracy doctrine comes closest to making a state of mind the occasion for preventive action against those who threaten society but who have come nowhere near carrying out the threat."

This ability to treat this "state of mind" as real crime means, in the words of legal scholar Kevin Jon Heller:

the government currently enjoys substantive and procedural advantages in conspiracy trials that are unparalleled anywhere else in the criminal law. Conspiracy convictions can be based on circumstantial evidence alone, and the government is allowed to introduce any evidence that "even remotely tends to establish the conspiracy charged.

Conspiracy Prosecutions Are a Means of Quashing Dissent

Conspiracy laws----including seditious conspiracy of course -- have long been used for a wide variety of alleged crimes.

However, as the Dr. Spock case makes clear, conspiracy prosecutions are also a tool against those who protest government policies. More specifically, given that conspiracy "crimes" are essentially crimes of words and thoughts, conspiracy prosecutions have long been employed as a way of circumventing the First Amendment. As the editors of the Yale Law Journal put it in 1970:

Throughout various periods of xenophobia, chauvinism, and collective paranoia in American history, conspiracy law has been one of the primary governmental tools employed to deter individuals from joining controversial political causes and groups.

Or, put another way by the Journal, through conspiracy prosecutions, the "government seeks to regulate associations whose primary activity is expression." Naturally, citizens are more reluctant to engage in expressive activities with others that could later be characterized in court as some kind of conspiracy.

So, if you and the other members of your gun club like to get a bit over-the-top in your comments about the crimes of America’s political class, be careful. The federal informant in your midst may be taking notes.

So it was the case with many government informants placed to investigate groups that opposed the War and the draft. Those who simply agreed with radical opinions could find themselves on the wrong end of a federal indictment.

Yet, any strict interpretation of the First Amendment—which is the correct type of interpretation—would tell us that this ought to be protected speech under the First Amendment. Federal courts, however, have long disagreed, and some advocates of conspiracy might claim that speech encouraging a specific crime ought not be protected.

Yet, in real-life conspiracy prosecutions, it is not easy to determine whether or not a "conspirator" is actually inciting a crime. As legal scholar David Filvaroff notes, the actual intent and effect of the speech in question in these cases is difficult to interpret. Thus, judgements about whether or not speech counts as protected speech is highly arbitrary:

He writes:

With a conspiracy to murder, one faces a potential crime of finite proportion and of near unmistakable content. There is little, if any, risk that either the defendants themselves, or the court or jury, will mistake the criminality of what the defendants propose to do. The probability of such a mistake both by the alleged conspirators and by the trier of fact is very high, however, in the case of conspiracy to incite.

Back to our case about burning down the dept. of education. Was that casual comment a conspiracy to incite arson? Did the defendant intend it as such? This is largely up to the unilateral interpretation of the prosecutor.

Most of the time, it is difficult for a "conspirator" to guess how others will interpret his words and what concrete actions might take place as a result.

Under these circumstances, innocent people can end up serving years in prison for expressing their views about what government agents or government institutions ought to do or stop doing.

The fact that legal acts can become illegal, and the fact that intent need not be proven makes conspiracy crimes, especially seditious conspiracy an excellent avenue for political prosecutions against perceived enemies of the state. It is not a coincidence that most of the charges against Donald Trump are conspiracy charges. They largely come down to Trump making statement both public and private questioning the validity of the election. Prosecutors have turned these opinions into a legal theory that Trump “incited” others to commit crimes. Thanks to conspiracy laws, it is not necessary that any actual crimes take place, or that any actual victims materialize, to get a guilty verdict.

Thanks to his wealth, Trump has been able to mount a defense. Most people accused of various conspiracy laws are not so lucky, and countless Americans have endured financial ruin and prison thanks to the vast and abusive powers handed over to prosecutors by conspiracy laws.

These are most dangerous when wielded against political opponents because, conspiracy laws essentially nullify the First Amendment and enable prosecutors to turn words into crimes.

End All Political Crimes

So what is to be done? Obviously, conspiracy laws, including seditious conspiracy laws, ought to be abolished. All sedition laws are especially ripe for repeal given that the United States survived for decades without any federal political crimes other than treason, narrowly defined.

Yet, if we are to win any meaningful victory against the state, we ought to repeal all political crimes, including treason, altogether.

For one, political crimes like treason and sedition are simply unnecessary.

It is already illegal to blow up buildings. It’s especially illegal to do it with people inside the building, whether those people are government employees or not. It is already illegal to murder people, regardless of whether or not they represent the state. Destruction of property is illegal in every state.

What political crimes like treason and sedition do is create a special class of people and institutions: government employees and government property, to send the message—via harsher penalties and punishments—that the destruction of government property, or the killing of government employees is worse than crimes against the mere taxpayers who pay all the bills.

Political crimes are often subject to fewer regulations protecting the rights of the accused, and are often prosecuted by authorities more directly under the control of the central executive power. In the United States, the federal government has taken over control of most political crimes, centralizing enforcement and thus strengthening the central state. Certainly this has been the case with sedition laws.

This scam that all modern regimes embrace exists not to keep the public safe. It exists for propagandistic purposes. These laws exist to send a message.

Treason and sedition laws create the illusion that loyalty to the regime to which on presently pays taxes is morally important.

Or, as historian Mark Cornwell puts it, regimes have long used crimes such as these “as a powerful moral instrument for managing allegiance.”

Freedom of speech has always been a grave threat to this manipulation of allegiance, and its why sedition and conspiracy laws have so long been employed to weaponize speech against dissidents.

The remedy lies in taking a page from those early Jeffersonians who abolished early sedition laws and refused to create new ones. The regime does not need or deserve a way around the First Amendment. The country does not need these “wornout pieces of tyranny” that are sedition and conspiracy laws. Abolish them now.