The Legal Basis For A Criminal Investigation of the Democrat "Seditious Six"
No, the Supreme Court has not ruled that the comments by the six are protected by the First Amendment.
Keep this thought in mind as you read what follows:
A U.S. Supreme Court decision remains valid and binding until the U.S. Supreme Court says otherwise.
This article concerns the availability of a civilian criminal charge that could be used as a basis to conduct an grand jury investigation into the “Seditious Six” — NOT a military inquiry under the Uniform Code of Military Justice. That might be available against one or more but I have no experience with the UCMJ so I’ll leave that to others.
I previously wrote about 18 U.S.C. Section 2387. About 45 minutes before I published that earlier article, Glenn Beck posted on X what I have screen-shotted above, followed shortly thereafter by President Trump re-posting Beck.
I’m not claiming credit for any of that, only that there has been some focus — without much legal analysis — on the possible use of Sec. 2387 against the Seditious Six. My earlier article covered some of the details of the statute, but I’ve since seen commentary suggesting that Sec. 2387 likely violates the First Amendment and that’s the reason no one has ever been prosecuted under that statute. That may very well be true — eventually — but that’s not where the law stands today.
As discussed in more detail below, in 1918 the Supreme Court upheld a conviction against a First Amendment challenge on a related statute with the exact same language. That decision has never been overruled, though the Court’s approach to the First Amendment and criminal statutes has changed over the past 100 years. But those changes did NOT involve application of the First Amendment in a military context.
Here is the text of Sec. 2387 so it is clear what language the critics are alleging is unconstitutional:
(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:
(1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States;…
Let’s start at the beginning.
In 1917 the Congress passed the Espionage Act of 1917. Section III of the original text of the statute read as follows:
Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both....
Amendments made to it in 1918 — the Sedition Act — dramatically expanded the language to target socialists, pacifists, and other anti-war activists who via their speech opposed US involvement after the outbreak of World War I. Critics called the expanded version a violation of civil rights and the First Amendment.
The Sedition Act was repealed by Congress in October 1920 after the war ended. The Espionage Act was later amended to focus on national defense and classified information, and is now codified at 18 U.S.C. Sections 793-798.
But the language above was not lost. It is found as part of a 1948 reorganization of nearly all of Title 18, appearing under 18 U.S.C. Sec. 2388 — “Activities Affecting Armed Forces During War.” That statute reads:
…. Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States, or attempts to do so—
Shall be fined under this title or imprisoned not more than twenty years, or both.
But Sec. 2388 is a companion statute to 18 U.S.C. Sec. 2387, “Activities affecting armed forces generally.” That statute is quoted above, but the operative language is “Whoever … advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States…” shall be fined or imprisoned for ten years.
The illegal conduct is the same, but Sec. 2388 applies in a time of war and Sec. 2387 applies in peacetime — with the former having a maximum prison term of 20 years, and the latter a term of 10 years.
