6 Seditious Libel and Incitement to Illegal Action

We begin the unit on free speech by looking at cases where states or the federal government charged individuals with 1) seditious libel and 2) incitement to illegal action.

Seditious libel, a crime foreign to American society today, is defined as criticizing or provoking anger at the government or government officials. Though seditious libel is barred by current interpretations of the First Amendment, it fits well with colonial and 19th-century views on speech, where speech was viewed as dangerous, impactful, and easily abused, potentially generating disorder, chaos, and instability. Without fear of punishment, this argument went, abuses of free speech could undermine government altogether. The fear of potential instability was so great, in fact, that even true and accurate speech could lead to seditious libel charges if such speech attacked the government.  Some countries with weaker free speech traditions still maintain such laws today, making political criticism of their regimes a dangerous proposition.

Setting aside whether government or political society is actually this fragile, or whether we trust the government to fairly assess when “dangerous speech” has occurred, seditious libel was just as likely to be employed to protect the reputations of heavy-handed or corrupt politicians as it was to protect social order. Worse, seditious libel laws were sometimes used to attack political opponents of those in power, with concerns over “disorder” being little more than a pretext for jailing your potential rivals. Frequent use of seditious libel charges by royal governors during the colonial era, for example, generated a great deal of anger among the colonists. Despite this abuse, these laws remained intact in early America, as seen below in the discussion of the Alien and Sedition Acts, and would reemerge during times of great national stress, used to attack abolitionists and opponents of both the Civil War and World War I. While unconstitutional under our current free speech doctrine (and formally buried in the 1964 case New York Times v. Sullivan), seditious libel prosecutions highlight an older, less protective view of free speech that we can contrast with contemporary views.

A second and related issue involves prosecutions for speech that the government alleges incites illegal action. Simply put, illegal incitement involves scenarios where a speaker urges listeners to break the law.

At first, this seems unproblematic. If a speaker tells an angry mob to attack a political opponent’s house, and they do so, why not hold the speaker legally responsible? The devil lies in the details. What if the speaker only told the crowd their political opponent was an enemy of democracy, and an attack occurred the next day? Did the speaker actually intend for their listeners to take illegal action? Did the speaker’s words clearly incite illegal activity, or were they instead criticism of their opponent’s policies?

Take an example you will read more about below. Imagine a government at war passing a law prohibiting individuals from “interfering” with the military draft. A speaker criticizes the war as wasteful and immoral, leading some listeners to burn their draft cards and resist the draft. Should the speaker be charged with incitement to illegal action? Or have they merely engaged in public commentary about political issues? What is the line between public criticism and illegal advocacy? If criticism of the draft can be viewed as advocacy for illegal draft resistance, then free speech is greatly reduced.

Our illegal incitement cases are important to read for two reasons. First, they are among the earliest Supreme Court cases to grapple with meaningful protections for free speech, as the justices first supported and then moved away from the Founding view that governments had broad power to punish speech. Reading these cases gives you a window into the process of constitutional development. Second, the issue of illegal incitement remains very much a live one, as social media has greatly amplified the power of individuals to speak to a large audience. Indeed, following the attack on the Capitol on January 6, 2021, many legal commentators considered whether President Trump’s words or tweets prior to the riot could be punished as incitement to illegal action even under stringent modern tests (the answer, as we’ll see later, is probably not).