Sedition in the United States: History, Comparisons, and Constitutional Challenges
Date of Information: 09/24/2025
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The Origins of Sedition as a Crime
Sedition, broadly defined, refers to speech or conduct that incites rebellion against lawful authority. Unlike treason, which requires overt acts of war or aid to an enemy, sedition often covers mere advocacy or attempts to undermine government authority through words or organizing efforts.
In English common law, sedition was treated as a political crime, often used by monarchs to suppress dissent. Early American leaders inherited this tradition but quickly recognized the danger it posed in a society founded on free expression.
Sedition in U.S. History
Alien and Sedition Acts of 1798
The most infamous early example of sedition laws in America was the Alien and Sedition Acts of 1798. Passed by the Federalist-dominated Congress and signed into law by President John Adams during heightened tensions with France, these four statutes included immigration restrictions and gave the president sweeping powers to deport noncitizens. The Sedition Act in particular criminalized “false, scandalous, and malicious writing” against the government.
Federalists defended the laws as necessary for national security during the quasi-war with France, when fears of foreign infiltration and disloyalty were rampant. In practice, however, they were applied selectively against Democratic-Republican opponents of Adams. Congressman Matthew Lyon of Vermont was fined and jailed for criticizing the president. Journalists such as James Callender were also imprisoned for articles attacking Federalist policies.
The acts sparked immediate backlash. Thomas Jefferson and James Madison authored the Kentucky and Virginia Resolutions, which declared the acts unconstitutional and advanced the idea that states could nullify federal laws they deemed invalid. The controversy contributed to Jefferson’s victory in the “Revolution of 1800,” which swept the Federalists from power. The Naturalization Act was repealed in 1802, and the Sedition Act expired in 1801. Only the Alien Enemies Act survived, later invoked during World War II to detain enemy nationals.
The Alien and Sedition Acts remain a cautionary tale in American legal history. They revealed how fragile constitutional protections can be in times of fear and crisis, and how quickly political leaders may turn to sedition laws as tools of repression.
The Espionage Act of 1917 and the Sedition Act of 1918
During World War I, Congress again turned to sedition-style laws. The Espionage Act of 1917 made it a crime to interfere with the military draft or otherwise obstruct the war effort. The following year, the Sedition Act of 1918 broadened those restrictions, imposing penalties for “disloyal, profane, scurrilous, or abusive language” about the government, Constitution, flag, or military.
Thousands of Americans—including socialists, pacifists, and anti-war activists—were prosecuted.
The most famous case was Schenck v. United States (1919). Charles Schenck, a Socialist Party leader, had distributed anti-draft leaflets urging resistance to conscription. The Supreme Court unanimously upheld his conviction, with Justice Oliver Wendell Holmes announcing the “clear and present danger” test: speech could be punished if “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”. Holmes added his enduring analogy: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”.
At the time, Schenck legitimated sweeping prosecutions under the Espionage and Sedition Acts. But over the following decades, the “clear and present danger” standard came under sustained criticism as too vague and deferential to government power.
In Brandenburg v. Ohio (1969), the Court replaced Schenck’s test with the modern “imminent lawless action” standard. To punish speech, the government must now prove it was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.
Finally, in United States v. Smith (2024), the U.S. Court of Appeals for the Armed Forces confirmed what had long been understood: Schenck is no longer good law. The government argued that provocative speech could be punished as “dangerous speech” under Schenck. The court rejected that theory, holding that the category of “dangerous speech” has been supplanted by the Brandenburg rule. Only speech falling into historically recognized exceptions—true threats, fighting words, or incitement to imminent lawless action—can be criminalized.
Thus, Schenck’s broad “clear and present danger” test belongs to history. Modern courts recognize it as inconsistent with the First Amendment’s protections, and sedition-style prosecutions must meet the far narrower Brandenburg standard.
Sedition Law in the United States Today
Although the Alien and Sedition Acts are long gone, sedition has not disappeared from American law. Chapter 115 of Title 18 of the U.S. Code still contains several sedition-related provisions. Because of the sacred protections of the First Amendment—especially the rights of free speech and assembly—these provisions are extraordinarily difficult to enforce, and rightfully so. The very concept of sedition runs contrary to the spirit of the First Amendment, and prosecutions are rare.
The Brandenburg Standard
The modern framework for sedition-related prosecutions comes from Brandenburg v. Ohio. It requires proof that speech was both intended and likely to incite imminent lawless action. This narrow test explains why sedition prosecutions are rare and why prosecutors are cautious about bringing such cases.
Inciting Rebellion or Insurrection (18 U.S.C. § 2383)
This provision criminalizes inciting, assisting, or engaging in rebellion against U.S. authority. While still enforceable, it has been very rarely used in modern times. Most of the reported decisions date back to the Civil War era, and they illustrate how closely this offense resembles treason (U.S. v. Greathouse, 26 F. Cas. 18 (C.C.N.D. Cal. 1863)).
To qualify, prosecutors must show not just political opposition but the use of unlawful means such as force or violence (U.S. v. Sinclair, 321 F. Supp. 1074 (E.D. Mich. 1971)). Yet because there is so little case law, uncertainty about what conduct qualifies creates a vicious cycle: prosecutors avoid the statute, which leaves courts with no modern guidance, which in turn perpetuates reluctance to use it.
Coupled with inevitable First Amendment challenges, § 2383 is among the least-invoked statutes in federal criminal law. In practice, it is enforceable only when speech directly incites imminent violent action that rises to the level of rebellion or insurrection.
Seditious Conspiracy (18 U.S.C. § 2384)
The federal seditious conspiracy statute makes it a crime for two or more persons to 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.”
We will explore seditious conspiracy in greater depth in another guide, but for purposes of this page, it is important to emphasize how courts have treated speech in relation to this statute.
The statute does not criminalize political expression or abstract advocacy. Courts have held that it “did not on its face violate the First Amendment” because it proscribes speech only when it is part of an actual agreement to use force against the government.
In other words, mere rhetoric is not enough. To be criminal under § 2384, the speech must be tied to a conspiracy—an agreement coupled with intent—to use violence. This is why abstract revolutionary talk or even radical organizing, without more, does not sustain a conviction.
The line is crossed when speech functions as part of a conspiracy to employ force. For example, the Second Circuit upheld the conviction of Omar Abdel Rahman, the “Blind Sheikh,” noting that his sermons and exhortations were not protected speech when they formed part of an agreement to wage war against the United States.
Similarly, in United States v. Lebron (1955), members of a Puerto Rican nationalist group were convicted of seditious conspiracy for conspiring to overthrow the U.S. government by force. Their prosecution did not violate the First Amendment because their political advocacy was joined to concrete plans of violent action.
Thus, what kinds of speech are outlawed? Not dissent, criticism, or even fiery rhetoric in isolation—but speech that is part of a conspiracy to use force. As one court explained, an “attempt of a domestic organization to attack and subvert existing structure of government is not a crime unless the activity is carried on through unlawful means, such as invasion of rights of others by use of force or violence”.
The constitutional safeguard remains Brandenburg v. Ohio’s requirement of imminent lawless action. This means the statute may only reach speech that is directly connected to a conspiracy involving imminent and forceful resistance to government authority.
Advocating Overthrow of Government (18 U.S.C. § 2385)
This statute—originally enacted as part of the Smith Act—makes it a crime to knowingly advocate the overthrow or destruction of the U.S. government by force or violence, or to organize or be a member of a group that does so.
We will explore § 2385 in more detail in another guide. For now, it is crucial to highlight how courts have interpreted its scope, especially regarding advocacy and speech.
The Supreme Court narrowed the statute in Yates v. United States (1957), holding that it reaches only advocacy of action to accomplish the violent overthrow of government, not the mere teaching of abstract principles or political philosophy.
Earlier prosecutions of Communist Party leaders in the mid-20th century treated fiery rhetoric as evidence of criminal advocacy. Later cases clarified that § 2385 must be read consistently with the First Amendment. Abstract revolutionary talk or Marxist theory, standing alone, is protected.
Convictions under § 2385 have been sustained only when the government proved speech urging concrete steps to use force against U.S. authority, often tied to organizational activity, recruitment, or incitement of followers. Mere membership in a radical group, without proof of intent to further unlawful action, is not enough.
Thus, what kinds of speech are outlawed by § 2385? Only speech that goes beyond abstract ideology and urges immediate, forceful action to overthrow the government. This makes the statute especially fraught, because it is aimed at advocacy itself—the very speech that sits at the heart of the First Amendment. Under modern law, the statute is cabined by Brandenburg v. Ohio, which requires intent, imminence, and likelihood of lawless action.
Comparison with Other Countries
Many other countries retain robust sedition laws. For example:
United Kingdom: The common-law crime of sedition was abolished in 2009, though related offenses such as “encouragement of terrorism” remain.
India: Section 124A of the Indian Penal Code still criminalizes sedition, though the Supreme Court of India has placed limits on its application.
Singapore and Malaysia: Sedition laws remain tools for controlling political dissent.
These international comparisons highlight how the U.S. has been unusually skeptical of sedition laws because of the constitutional premium placed on free speech.
The First Amendment Conflict
The First Amendment guarantees freedom of speech and press, creating a constant tension between sedition laws and constitutional rights. U.S. courts have increasingly limited sedition prosecutions to situations involving imminent lawless action—the standard articulated in Brandenburg v. Ohio.
As a result, modern sedition statutes exist in the federal code, but prosecutions are rare. The government must prove not only advocacy, but incitement of action that poses a real and immediate threat to lawful authority.
The Fraught Legacy of Sedition in the U.S.
The history of sedition laws in the United States reflects a recurring struggle: the balance between protecting national security and safeguarding the freedoms at the core of American democracy. From the Alien and Sedition Acts to the modern era, the charge of sedition has often been criticized as a weapon against political opposition rather than a neutral safeguard of public order.
Frequently Asked Questions
1. What is sedition under U.S. law?
Sedition broadly refers to speech or conduct aimed at inciting rebellion or undermining governmental authority. In U.S. federal law, much of what historically might have been called “sedition” is now prosecuted under statutes like 18 U.S.C. § 2383 (rebellion/insurrection), § 2384 (seditious conspiracy), and § 2385 (advocating overthrow). But in modern practice, those statutes are very narrowly applied because of First Amendment protections.
2. Why are sedition-style laws rarely enforced today?
The First Amendment and Supreme Court doctrine (especially Brandenburg v. Ohio) impose a stringent standard: advocates must intend to incite imminent lawless action, and their speech must be likely to produce such action. That high barrier—plus sparse judicial precedent—makes prosecutors cautious about bringing sedition or quasi-sedition charges.
3. How did Schenck v. United States factor into sedition prosecutions?
In Schenck (1919), the Supreme Court upheld a conviction under the Espionage Act using the “clear and present danger” test—that is, speech may be restricted if it poses a clear and present danger of substantive evils Congress has the right to prevent. But Schenck is now widely understood as outdated; modern courts have replaced it with the stricter Brandenburg test and even the U.S. Court of Appeals for the Armed Forces has held Schenck no longer controls.
4. What kinds of speech does the seditious conspiracy statute (18 U.S.C. § 2384) prohibit?
§ 2384 does not outlaw abstract political speech or dissent. It reaches only speech that is part of a conspiracy to use force against the government. In other words, mere rhetoric or criticism is not enough—the speech must be tied to an agreement and intent to instigate or execute unlawful, forceful action.
5. What does § 2385 (advocating overthrow) criminalize?
§ 2385 prohibits knowingly advocating the forcible overthrow or destruction of the U.S. government or aiding in organizing groups toward that end. But courts have emphasized that it does not criminalize abstract political philosophy or theoretical discussion. Only speech that urges immediate, forceful action (in conjunction with intention and likely effect) is at risk under § 2385.
6. How does Brandenburg v. Ohio limit sedition prosecutions?
Brandenburg established that speech can be punished only if (1) it is directed to inciting imminent lawless action, and (2) it is likely to produce that action. Because sedition statutes deal with dissent and opposition to government, they must be interpreted through that narrow lens, which constrains their practical reach.
7. Can someone be convicted of sedition for peaceful protest or harsh criticism?
No—peaceful protest, harsh criticism, or unpopular ideas are protected by the First Amendment. A sedition-style conviction requires elements beyond speech alone: imminence, intent, and close coordination with unlawful action or conspiratorial planning.
8. Why is there so little case law defining modern sedition statutes?
Because prosecutors rarely pursue these cases—given the constitutional risks and uncertain contours—and courts have had few opportunities to interpret the statutes in modern contexts. That creates a feedback loop: lack of precedent leads to prosecutorial caution, which leads to continued lack of precedent.
9. Where can I learn more about related offenses like treason or insurrection?
We plan to publish companion guides that delve into insurrection/substantive rebellion, treason, and crimes against the state. You’ll find cross-links from this page to those deeper treatments as they become available.
Need Help with a National Security Case?
If you’re facing questions about how sedition or related charges may affect you, or if you want experienced guidance on complex federal statutes and constitutional protections, schedule a consultation with Charles International Law today.
See Also:
CIL Guide to Treason
CIL Guide to Crimes Against the State
CIL Guide to Export Control and Sanctions
