Treason, Sedition and the US Bill of Rights

Question

In 2018, where are lines drawn between treason, sedition, and constitutionally protected freedoms of speech and assembly?

1. Publishing a neutral, fact-based article on a contentious topic, citing sources and giving each side an opportunity to respond, but which can be construed as portraying the USA in a negative light.

2. Publishing a biased, opinion-based article on a contentious topic, selectively citing sources without giving each side an opportunity to respond, and which intentionally portrays the US in a negative light.

3. Same as 2, but in this case you are working in collaboration with foreign entities and/or agents in support of their goals.

4. Same as 3, but you are being paid or receiving some other concrete consideration.

5. Same as 2, but your activities include organizing groups of other citizens to participate.

6. Same as 4, but you organize groups of other citizens to participate.

7. Same as 5, but beyond publishing, you engage in civil disobedience to subvert the usual rule of law.

8. Same as 6, but beyond publishing, you engage in civil disobedience to subvert the usual rule of law.

9. Same as 7, except activities include rioting, looting or other serious criminal activities.

10. Same as 8, except activities include rioting, looting or other serious criminal activities.

Assume that all anti-American sentiment is aligned with a specific foreign nation's interests. Consider each case:

• the foreign nation is a close ally of the US
• the foreign nation has neutral relations with the US
• the foreign nation is a bitter rival with cold relations to the US
• the foreign nation is in a state of open, declared war with the US

Answer 1

Relevant Law

Treason

Treason is constitutionally defined as waging war on the United States, or giving aid and comfort to its enemies. The definition doesn't formally say so, but only someone who owes allegiance to the United States (i.e. a U.S. citizen) can be guilty of treason. The federal treason statute states:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

18 USC Section 2381.

The main limitations are in bold.

The word "enemy" has a technical meaning in the area of treason and foreign relations, which means a country or insurgent group with whom the United States is at war. Thus, the following are not "enemies" of the United States:

• the foreign nation is a close ally of the US

• the foreign nation has neutral relations with the US

• the foreign nation is a bitter rival with cold relations to the US

But, this one is an enemy of the United States:

• the foreign nation is in a state of open, declared war with the US

Hence, a U.S. citizen giving aid and comfort to ISIS (with whom we have a Congressionally authorized war) as it tries to mount a terrorist attack on the U.S. might very well be treason, but assisting Russia (with whom the U.S. is not at war) in assassinating an American would not be.

I don't know if North Korea is a current "enemy" of the United States or not. The Korean War is not over, but I don't know if the U.S. declaration of war on North Korea is still in force.

It is also a lesser felony to failure to report treason in progress to the authorities, with treason itself defined in essentially the same way. 18 USC Section 2882. Thus, U.S. citizens have a legal duty enforceable with criminal law to affirmatively report treason.

Rebellion or insurrection

Also rebellion or insurrection is a crime defined as follows:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

18 USC Section 2383

The bold language greatly restricts the applicability of this crime. This is not something you can really do by yourself, you need to be part of an organized insurgency group actively trying to overthrow the U.S. government by force.

Affiliation with a foreign power is irrelevant to this offense.

Sedition

Sedition (actually seditious conspiracy) is defined as:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, 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, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

18 USC Section 2384.

The highlighted portions are the least culpable ones that qualify for the offense of seditious conspiracy, which are subject to some significant case law glosses of interpretation. At a minimum seditious conspiracy must involve defiance of the authority of the United States.

Simply committing serious crimes against the United States (e.g assassinating a high government official or blowing up a government building), while acknowledging that the United States is the legitimate government of the United States acting within its authority and not seeking regime change (not just new personnel but a new constitution not adopted by constitutional means), is not sufficient.

Your involvement with a foreign power is neither necessary nor sufficient for conduct to be seditious.

Advocating the overthrow of the United States government

Advocating the overthrow of the United States government is also a crime in some circumstances (subject to significant judicial case law glosses):

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.

18 USC Section 2385.

Collaboration with a foreign power isn't an element of this crime and is neither necessary nor sufficient to establish it. The key limitations and most inclusive provisions are in bold. The First Amendment significantly limits that application of this crime as applied, but it is not unconstitutional in all circumstances.

Your Examples

Numbers 1-2 would never be crimes of any kind as described and not reading anything else into them.

Numbers 3-6 are not illegal per se, but you may be required to register as a foreign agent and these activities may be illegal for someone holding certain government offices.

Nothing in 1-6 would constitute treason or sedition or rebellion.

Civil disobedience is a description that speaks more to the reason and motive for the action than the action itself so it is hard to say what you mean by 7-8. Somebody could call blowing up the Capitol "civil disobedience" or could mean protesting in violation of a curfew ordinance. Some of those activities could constitute a seditious conspiracy.

With respect to 9-10, the acts involved are more clear, but the motive and context remain in doubt. Some of this activity could conceivably be a seditious conspiracy, but we don't have enough context here to know.

Answer 2

In times of open war, #3 may be the line for treason if the content can be considered enemy propaganda. There are two relevant treason cases during WWII, Gillars v. United States and Best v. United States where US citizens are convicted of treason for broadcasting radio programs meant to demoralize American fighting forces.

From Gillars, "While the crime is not committed by mere expressions of opinion or criticism, words spoken as part of a program of propaganda warfare, in the course of employment by the enemy in its conduct of war against the United States". Since Gillars and Best were being paid by the enemy, they are both an example of #4.

That said, you don't need to be paid by an enemy to show adherence. There are "rare cases where adherence might be proved by an overt act such as subscribing an oath of allegiance or accepting pay from an enemy" (U.S. v. Cramer). "Proof that a citizen did give aid and comfort to an enemy may well be in the circumstances sufficient evidence that he adhered to that enemy and intended and purposed to strike at his own country" (U.S. v. Kawakita), so circumstantial evidence is enough to prove adherence to the enemy. I think you can get to #3 with the facts of Best and Gillars of they had volunteered their time and not been paid. They still had treasonous intent and they still adhered to the enemy.

Cramer v. United States shows us that #2 cannot be treason because there is no adherence to the enemy. "A citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason."

So #2 as written is not treason, but let us change the facts just slightly to try to get there. Let's say that what's written in #2 is inciting a rebellion or encouraging others to commit treason. "the speaking or writing of words may in itself be an act of such a nature as to constitute treason. Thus, while words which merely express a man's opinions or statements of intentions may not be treason, words which embody advice, or counsel, or inducement, or persuasion, to others to commit any of the acts recited in sub- divisions (a), (b), (c), (d), (e), (f), (g), (h), supra,may constitute in themselves the act of advising, counselling, inducing, or persuading, which act may in itself be a treasonable act; and the embodiment of such words in circulars, or other printed matter, and their circulation or distribution may be treasonable acts. "Inciting or encouraging others" to aid the enemy, even if such incitement or encouragement is merely verbal, may constitute very substantial acts of aid and comfort" (WHAT IS GIVING AID AND COMFORT TO THE ENEMY?, CHARLES WARREN, citing U.S. v. Bletch)

So could we tweak the facts slightly to make #1 treason too? Say your fact-based and controversial document actually contains top secret military troop positioning. If you publish your article for the purpose of disseminating secrets to our enemy, then you might be guilty of treason. Proving that you had treasonous intent may be very hard, but technically possible. "Without going into details on the subject, I will briefly notice some things clearly involving the guilt of treason. Thus, to sell to, or provide arms or munitions of war, or military stores, or supplies, including food, clothing, etc., for the use of the enemy, is within the penalty of the statute. And to hire, sell, or furnish boats, railroad cars, or other means of transportation, or to advance money, or obtain credits, for the use and support of a hostile army is treasonable. It is equally clear that the communication of intelligence to the enemy by letter, telegraph, or otherwise, relating to the strength, movements, or position of the army, is an act of treason. These acts, thus briefly noted, show unequivocally an adherence to the enemy, and an unlawful purpose of giving him aid and comfort." (U.S. v. Bond)

You may have noticed that there are two ways you can commit treason. Either by "levying war" against the US, such as in a rebellion, or by providing "aid and comfort" to enemies. You can be charged for "levying war" in peace time since it doesn't require another state actor to commit this crime. "'Levying war' should be confined to insurrections and rebellions for the purpose of overturning the government" (United States v. Hanway). This is just you rebelling against the government. It's possible that you could be prosecuted for "levying war" by inciting others to commit treason, but that would probably be a very hard case to win with 1st amendment protections.

As for the state of the relationship between nations to warrant treason when providing "aid and comfort", it must be sufficiently bad to warrant the other state being an "enemy". A declared state of war is sufficient but not necessary. "Open hostilities" is really the standard.

"It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.' If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with an- other whole nation, and all the members of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a *general authority, and all the rights and consequences of war attach to their condition. But hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorized to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force, between some of the members of the two nations, authorized by the legitimate powers. It is a war between the two nations, though all the members are not authorized to commit hostilities such as in a 180. solemn war, where the government restrain the general power." (Bas v. Tingy)

The fascinating thing about this case is that it declared France an enemy because we had essentially sanctioned them, withdrawn diplomats, implementated tariffs, and had some minor skirmishes. You could make a case that we're in about the same place with Russia right now. We've expelled diplomats, sanctioned them, they're subject to Trump's tariffs, and we've militarily attacked them in Syria. Not to mention they've launched a cyber attack on us which according to US policy we view as a hostile act that we can respond to with military force. I think you can make a reasonable argument that they're am enemy.

About the Korean War

Thompson v. Whittier, 185 F. Supp. 306, 314 (D.D.C. 1960) (three-judge district court) and Martin v. Young, 134 F . Supp. 204, 207, 208 (N.D. Cal. 1955). Martin, for example, was a habeas proceeding by a serviceman who was being court-martialed for allegedly aiding the enemy while, a prisoner of war in Korea. He had reenlisted after the term of enlistment in which his crime was alleged to have been committed, and was still in the armed forces at the time of his court-martial. A jurisdictional provision of the Uniform Code of Military Justice (since repealed or amended) provided for courts-martial for certain military personnel whose terms had expired, but only if they were not triable for the same offense or a greater one in a civil court. The district court found that Martin could have been tried in a civil court on (among other charges) a charge of treason, and therefore that the court-martial lacked jurisdiction to try him oh a lesser, aiding the enemy charge. Implicit in the court's decision was the view that treason could have been established for giving aid and comfort to the enemy during the undeclared war in Korea. https://www.justice.gov/sites/default/files/olc/legacy/2009/12/30/aclu-ii-122101.pdf