Sedition? Treason? Let history be the judge

When do words stop being free speech and become an act of treason?

That is the very question underlying the arrest of nine members of a self-styled militia unit in Michigan on charges of conspiracy to commit sedition or rebellion. This past week a federal judge, while hearing whether to release the nine on bail, pointedly questioned the strength of the government case.

The government "need not wait until people are killed before it arrests conspirators," U.S. District Judge Victoria Roberts said, as reported by The Associated Press. "But the defendants are also correct: Their right to engage in hate-filled, venomous speech is a right that deserves First Amendment protection."

Prosecutors claim the defendants, who call themselves the Hutaree, planned to kill police officers as part of a far-fetched plot to create an uprising that would overthrow the federal government.

"Discussions about killing local law enforcement officers -- and even discussions about killing members of the judicial branch of government -- do not translate to conspiring to overthrow, or levy war against, the United States government," Roberts was quoted as saying in court.

She also pointed out that, in a surveillance recording, one suspect talked not about "overthrowing the United States government," but of "reclaiming America."

In another recording, the leader of the Hutaree was overheard saying, "It's time to strike and take our nation back so that we may be free again from tyranny."

Strong words, but criminal?

Probably. Title 18, Part 1, Chapter 115, Section 2385 of the U.S. Code defines the crime of attempting to overthrow the government rather broadly:

"Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government … by force or violence, or by the assassination …

"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 …"

The penalty for those "whoevers" is a fine, imprisonment or both.

Over the years the courts have been pretty tough on people who have defied the government. During World War I, the U.S. Supreme Court's bright line for whether a pamphlet broke the law was whether "the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent."

In that case the evil was a pamphlet arguing the draft violated the 13th Amendment prohibition against involuntary servitude. That netted a prison term.

In 1951, members of the American Communist Party were convicted of advocating the violent overthrow of the government, even though their power to actually do so was pointedly questioned by a couple of justices.

If you have grown up with and spent time over the years with people who cling to their guns and religion and call themselves patriots, as I have, you'll hear and read some strong language. Should they all be rounded up by the FBI?

I've quoted people in my reporting and columns saying things like: "It is the duty of the patriot to protect his country from its government." Seditious?

Then there was the tall fellow fed up with tax hikes, who warned, "The time is near at hand which must determine whether Americans are to be free men or slaves."

And I read about a really angry Tea Party-type who philosophically wrote, "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government …"

Then there was the short, balding gentleman, who had a habit of angering even his friends. He popped off, "The right of a nation to kill a tyrant in case of necessity can no more be doubted than to hang a robber, or kill a flea." Advocating assassination, was he?

And there was the fellow who said our officials need to be warned from time to time that the people can take up arms again if need be, "What signify a few lives lost?"

Finally, in frustration, the angry guy exclaimed, "If this be treason, make the most of it!"

Those tea sippers were, respectively, Thomas Paine, George Washington, Patrick Henry, John Adams, Thomas Jefferson and Henry, again. Come to think of it, they all committed sedition and rebellion. Jefferson called the blood of patriots and tyrants a natural manure for the tree of liberty.

Only history, not a federal judge, can determine who is a traitor to the rights of man under natural law.

Thomas Mitchell is editor of the Review-Journal and writes about the role of free speech and free press, as well as access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.