Reviving Sedition Prosecutions Would Be a Tragic Mistake

by David Beito

David T. Beito is a recently retired history professor from the University of Alabama. He is the author of four award winning books: Taxpayers in Revolt: Tax Resistance during the Great Depression (Chapel Hill, 1989); From Mutual Aid to the Welfare State: Fraternal Societies and Social Services, 1890-1967(2000); The Voluntary City (2002); and T.R.M. Howard, Doctor, Entrepreneur, Civil Rights Pioneer (2019). He also has written the forthcoming FDR's War on the Bill of Rights: Mass Surveillance, Censorship, and the New Deal.

"That's insurrection against the United States of America," MSNBC's Joe Scarborough declared after an angry mob overran the U.S. Capitol. "If Donald Trump Jr., Rudy Giuliani, and Donald Trump are not arrested today for insurrection and taken to jail and booked—and if the Capitol Hill police do not go through every video and look at the face of every person that invaded our Capitol and if they are not arrested and brought to justice today—then we are no longer a nation of laws and we only tell people they can do this again."

Scarborough isn't the only one thinking along those lines. The airwaves have been filled with calls for charging not just the people directly involved in the riot but the people who spoke at the rally beforehand. The word sedition is getting thrown around a lot. Merriam-Webster reports that searches for the word spiked an amazing 1,500 percent on January 6, the day of the violence.

That would be a tragic mistake. The history of sedition prosecutions is rife with injustices, and the precedent, once established, becomes a grotesque Frankenstein monster. In many cases, the same people demanding prosecutions end up, when political fashions change, facing prosecution for the same offense.

World War II provides two classic examples. President Franklin Roosevelt's administration initiated two mass sedition trials under the 1940 Smith Act, formally known as the Alien Registration Act, which made it illegal to "advocate, abet, advise or teach" the violent overthrow of the U.S. government.

The first prosecution was against 23 members of the Socialist Workers Party, a Trotskyist group, for conspiring to overthrow the government by force. As is typical of these cases, the government never provided any evidence that the defendants had specific plans to do this, focusing instead on the potential that their abstract Marxist boilerplate condemning "capitalist wars" or playing up wartime injustices, such as police brutality, might incite insurrection.

Later in the war, the federal government hauled up 32 anti-Semites and other right-wing extremists in the largest mass trial in Washington, D.C., history. Most of them didn't even know each other before the indictment. The evidence was just as tenuous as the evidence against thr Socialist Workers Party. According to prosecutors, the defendants' writings against Roosevelt's foreign policy may have had an injurious influence on some members of the armed forces, undermining U.S. security. This, it was argued, was reason enough to send them to prison.

In these trials, the administration had support from members of the Communist Party. Only two years after the war ended, the government began prosecuting Communists under the same statute.

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