Power & Market

Abolish Sedition Laws

On Tuesday, a federal judge in Washington, D.C., sentenced Enrique Tarrio, the former leader of the Proud Boys, to 22 years in jail for the crime of “sedition” arising out of the January 6 protests at the Capitol. It wasn’t the first time that the judge, Timothy Kelly, meted out a high jail sentence for the sedition offense. Last week, he handed out an 18-year sentence to Ethan Nordean, one of Tarrio’s co-defendants. Last May, another D.C. federal judge, Amit P. Mehta, sentenced leader of the Oath Keepers militia, Stewart Rhodes, to 18 years for the federal crime of “sedition.”

Those high jail sentences for what amounts to a protest gone awry are so ridiculous that they serve as an excellent advertisement for the abolition of sedition laws, which have no place in a genuinely free society.

The federal crime of “sedition” is akin to the local crime of “disorderly conduct.” It is designed to give federal authorities the ability to severely punish people who have committed no real crime to justify severe punishment.

The website of the Legal Information Institute at Cornell University defines sedition as “language intended to incite insurrection against the governing authority.” The website points out:

Edward Jenks, in The Book of English Law, contends that sedition is “perhaps the very vaguest of all offences,” and attempted to define it as “the speaking or writing of words calculated to excite disaffection against the Constitution as by law established, to procure the alteration of it by other than lawful means, or to incite any person to commit a crime to the disturbance of the peace….

The federal statute under which Tarrio and Kelly were convicted and sentenced, 18 U.S.C. Section 2384, states as follows:

[i]f two or more persons in [the U.S.], conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

How did Kelly arrive at 22 years for Tarrio when the law expressly limits sentences to 20 years? He used some sort of enhancement provision relating to terrorism law, even though Tarrio was convicted of “sedition,” not “terrorism.” If that’s not strange legal reasoning, I don’t know what is.

The notion that the January 6 protests were an attempt to overthrow the U.S. government is laughable to the extreme. After all, everyone knows about AR-15s and other assault rifles. Everyone also knows about regular mass killings in the United States. If people are going to attempt a violent overthrow of the federal government, they are going to go into the Capitol with AR-15s or other assault rifles. They are immediately going to start shooting and killing people and taking hostages. Think Columbine. Think Uvalde. Think Las Vegas. Think White House Down. They are not going to settle for smashing a few doors and windows, forcing their way past security police, or damaging some desks.

In fact, it is ironic that that the only person who was killed on January 6 was an unarmed protestor. That was Ashli Babbitt, who was shot dead by a Capitol policeman who got scared during the protest. Notwithstanding the fact that he shot an unarmed woman in cold blood, that cop got away scot-free, unlike Tarrio and Nordean, who didn’t kill anyone.

Imagine if it had been the other way around. Imagine that Babbitt, or Tarrio, or Nordean had killed an unarmed Capitol policeman in cold blood. I will guarantee you that they would have been prosecuted for murder—and rightly so—and, upon conviction, would have been quickly sentenced to death by Judge Kelly.

There is no doubt that on January 6, people were filled with passionate emotions. Election disputes and other political controversies (such as deadly and destructive foreign wars like the Vietnam War or the conscription that comes with them) do that to people sometimes. There is also no doubt that given the heightened emotions, such protests oftentimes get out of hand. That certainly is what happened in the January 6 protests.

But to jump from that to the notion that the protestors were attempting to overthrow the U.S. government is so patently ridiculous that it defies credulity, especially since the protestors undoubtedly knew that the Pentagon is situated just a short distance away and, no doubt, was ready and able to quickly put down any violent takeover attempt of the Capitol with maximum military force.

Of course, there is also the possibility that Judge Kelly relied on the following provision of the federal sedition statute: “or by force to prevent, hinder, or delay the execution of any law of the United States.” But that little catch-all phrase could easily be employed against anyone who violates unjust federal laws, including drug laws, or even just engages in civil disobedience against such laws. Like I say, “sedition” is the federal equivalent to the local crime of “disorderly conduct.”

In 1735, the colonial governor of New York sought to prosecute a man named Peter Zinger of seditious libel. A jury of English colonists refused to convict him. Four decades later, in 1775, King George III ordered his minions to target colonists for sedition. The ridiculously high jail sentences meted out in the January 6 protests follow in that ignoble and tyrannical tradition.

It’s one thing to charge January 6 protestors who got out of control with such crimes as trespass, assault, or destruction of government propriety. It’s quite another thing to punish them for sedition, a hallmark crime of tyrannical regimes. The January 6 sedition convictions and punishments should be vacated and America should abolish all sedition laws and never enact them again. Such laws have no place in genuinely free society.

[Originally published by the Future of Freedom Foundation.]

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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