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Can the government prosecute the eleven Oath Keepers it claims were conspiring against it simply for the words they said? Judge Andrew Napolitano suggests they cannot, writing:
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, a conviction upheld by the Supreme Court, 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, and that makes 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?
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