These are perilous times. They are made worse by the government’s political reaction to lawless behavior, which is a greater threat to personal liberty than the behavior it seeks to punish.
Last week, federal law enforcement obtained an indictment of 11 members of the Oath Keepers for their role in trashing the Capitol building and attempting to interfere with the functions of government on Jan. 6, 2021. The evidence of their guilt of trashing and obstruction is manifest. The hooligans who invaded the Capitol were lawless by any rational standard.
But did they really agree to overthrow the government by force?
Here is the backstory.
The history of British monarchs staying on their inherited thrones is the history of the suppression of dissent. The favorite tool for suppression was charging dissidents with treason. Treason was whatever threatened the government’s stability from the perspective of the government.
In 1535, St. Thomas More, a former lord chancellor of England — the precursor to the modern prime minister — was convicted of treason and beheaded for remaining silent when the king and Parliament commanded him to speak.
The punishments for treason were horrific and always included the convict’s death, often preceded by his public dismemberment.
The framers of the U.S. Constitution were familiar with this history and sought to prohibit its repetition in America. They did so by defining treason in the Constitution. “Treason against the United States shall consist only in levying war against them or in adhering to their Enemies, giving them aid and comfort.”
Treason is the only crime defined in the Constitution. James Madison, who drafted the Constitution, insisted that the definition of treason be in the founding document so that neither Congress nor the president could manipulate it to their own ends as British monarchs and parliaments had done.
Not deterred by the constitutional language they had sworn to uphold, the federalist Congress and President John Adams crafted a substitute crime in 1798 and called it sedition. It made criminal any “false, scandalous or malicious writings against the government of the United States.” This was intended to suppress dissent and evade the high bar established in the Constitution for proving treason.
Thus, the same generation — in some cases, the same human beings — that had just written in the First Amendment that “Congress shall make no law … abridging the freedom of speech” did just that. And they used it to prosecute their political opponents, including infamously Rep. Matthew Lyon of Vermont, who mocked Adams’ waistline.
The Federalists were so accustomed to using this tyrannical tool that a lame-duck federalist Congress and Adams repealed it after Thomas Jefferson was elected president, and while the anti-Federalists were waiting to assume control of Congress, lest the incoming government use it against them. Yet, one of Mr. Jefferson’s first acts as president was to pardon Lyon.
In 1918, President Woodrow Wilson offered legislation to suppress dissent during World War I, and Congress enacted it. The socialist firebrand Eugene v. Debs was convicted of sedition, which the Supreme Court upheld for publicly denouncing the war.
Wilson and his Attorney General A. Mitchell Palmer ruthlessly used the Sedition Act of 1918 to suppress dissent. They prosecuted college students who sang German beer hall songs and read the Declaration of Independence aloud in public. Their theory was that dissent dissuaded young men from registering for the draft and thus had the potential for impairing America’s war effort and thus constituted sedition.
The statute under which Debs and others were convicted is essentially the same statute under which the Oath Keepers were indicted last week. It also prohibits any conspiracy to overthrow the government by force. A conspiracy is an agreement by two or more persons to commit a crime, where at least one of those persons took a material step in furtherance of the agreement.
But the essence of conspiracy consists of constitutionally protected behavior — speech and thought, making it legally dubious and practically difficult for the government to prove.
The last federal sedition case was brought against a Michigan militia in 2010. The indictment was dismissed by a federal judge who ruled that the defendants’ hateful and threatening words and outlier agreements were protected speech and did not evince a realistic plan to overthrow the government by force.
In the indictment against the Oath Keepers, the feds have outlined in great detail the communications among them in the months preceding Jan. 6. The detail is so great that the FBI must have had an undercover agent or cooperating witness embedded in the group. This leads to a host of other problems for the government. What did the feds know, and when did they know it? How and why did they let it lead to destruction and death?
The Oath Keepers have insisted that they never intended to use violence and only wanted to make a political point — a point that the government hates.
Prosecuting speech is dangerous business. Violence is certainly not constitutionally protected, but hate speech is. As recently as 1969, a unanimous Supreme Court ruled that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut it.
Even the feds don’t claim that the Oath Keeper defendants are somehow criminally liable for the behavior of others present at the Capitol. Rather, they claim that 11 persons — 11! — agreed to overthrow the government by force. Can an agreement that is impossible to perform legally constitute a conspiracy? Only those who hate the politics of the 11 could seriously believe that it can.
The government should prosecute only crimes that have caused harm, not words and ideas that it hates, for they are protected by the First Amendment that the government has sworn to uphold. Whose words and ideas will the feds prosecute next?
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.