Seditious Conduct and Freedom of Speech: Three Things You Should Know

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

It seems at times as though everyone has something negative to say about the government or about the people elected to political office. Most people might correctly assume that such political rhetoric is protected by the First Amendment to the Constitution, but history shows that criticism of the government was once considered to be seditious speech that could lead to a prison sentence. 

The Founding Fathers take a step back from freedom of speech   

Freedom of speech became a right guaranteed under the Constitution with the ratification of the Bill of Rights in 1791. No sooner had the First Amendment with its prohibition against passage of laws "abridging the freedom of speech" become a reality than Congress passed the Sedition Act of 1798.   

Officials were convinced that allowing people to be openly critical of the government would lead to violence and pose a risk to the existence of the United States. Seditious conduct and speech could subject a person to a criminal conviction and imprisonment. Seditious speech was defined as any false, malicious or scandalous statements directed at the government or at government officials.  

One person was convicted of sedition for claiming that the president was trying to grab power for himself. Another person was convicted for having a sign referring to government officials as tyrants. Eventually, anyone convicted of engaging in seditious speech was pardoned by President Jefferson after he took office following the expiration of the Sedition Act.  

The Supreme Court finally speaks on freedom of speech and seditious conduct  

Long after the Sedition Act was gone, Congress took another shot at the First Amendment with the passage of the Espionage Act of 1917. Seditious speech was once again at the heart of the new law as it criminalized false statements intended to aid the enemies of the U.S. by interfering with its military operations. Congress passed other laws at about the same time that made it a crime to disrespect the government, the American flag or Constitution. 

By 1919, Supreme Court was called upon to rule on the constitutionality of the Espionage Age and the other laws recently passed by Congress. The court ruled that pamphlets encouraging individuals to avoid the draft during a time of war was seditious speech not protected by the First Amendment. The Court used the "clear and present danger" standard to rule that encouraging young men to avoid the draft when the nation was at war created a clear and present danger.   

The Supreme Court revisits clear and present danger    

It was not until 1949 that the Court revisited and rejected the clear and present danger standard in a case involving a state law. The Court reversed a man's conviction for disturbing the peace because it said the exercise of his rights under the First Amendment should not be restricted even though the government claimed it might incite a violent response. It said his First Amendment rights did not end simply because what he was saying caused others to disagree.   

The long history of the battle between national security and freedom of speech is one that is ongoing. Laws prohibiting the desecration of the American flag were struck down within the past 30 years as violating the First Amendment freedom of speech rights of those charged with violating them.

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