Anti-government speech has become a four-letter word. In more and more cases, the government is declaring war on what should be protected political speech whenever it challenges the government’s power, reveals the government’s corruption, exposes the government’s lies, and encourages the citizenry to push back against the government’s many injustices. Indeed, there is a long and growing list of the kinds of speech that the government considers dangerous enough to red flag and subject to censorship, surveillance, investigation and prosecution: hate speech, conspiratorial speech, treasonous speech, threatening speech, inflammatory speech, radical speech, anti-government speech, extremist speech, etc. Things are about to get even dicier for those who believe in fully exercising their right to political expression.
Indeed, the government’s seditious conspiracy charges against Stewart Rhodes, the founder of Oath Keepers, and several of his associates for their alleged involvement in the January 6 Capitol riots puts the entire concept of anti-government political expression on trial. Enacted during the Civil War to prosecute secessionists, seditious conspiracy makes it a crime for two or more individuals to conspire to “‘overthrow, put down, or to destroy by force’ the U.S. government, or to levy war against it, or to oppose by force and try to prevent the execution of any law.” It’s a hard charge to prove, and the government’s track record hasn’t been the greatest. It’s been almost a decade since the government tried to make a seditious conspiracy charge stick—against a small Christian militia accused of plotting to kill a police officer and attack attendees at his funeral in order to start a civil war—and it lost the case.
Although the government was able to show that the Hutaree had strong anti-government views, the judge ruled in U.S. v. Stone that “[O]ffensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy.” Whether or not prosecutors are able to prove their case that Rhodes and his followers intended to actually overthrow the government, the blowback will be felt far and wide by anyone whose political views can be labeled “anti-government.” All of us are in danger.
John W. Whitehead Archive
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