Freedom of expression and the crowded theater

Oath Keepers founder Stewart Rhode was charged this week with seditious conspiracy for his role in the January 6 attack on the US Capitol.

Under U.S. Code 18 Section 2384, the crime includes a conspiracy by two or more people to use force “to prevent, hinder, or retard the execution of any law of the United States.” Seditious conspiracy also includes the use of force to “seize, take, or possess any property of the United States contrary to the authority thereof”.

There could hardly be a more accurate description of the January 6 attack on the United States Capitol. More than 700 of the estimated 2,500 people who illegally entered the Capitol that day have been criminally charged, most with misdemeanors.

This seditious conspiracy charge is significant in part because Rhodes did not enter the Capitol that day.

However, he and 10 other defendants were charged in U.S. District Court for the District of Columbia with seditious conspiracy, conspiracy to obstruct official process and six additional counts.

In other words, Rhodes and his aides are accused of being part of a scheme to escalate so-called “stop theft” rallies into a violent obstruction of Congress’ obligation to count electoral votes.

Given the ongoing attempt to portray the election as fraudulent, public social media posts encouraging violence, organized military tactics caught on camera, and mountains of other evidence, many wonder why these types of accusations don’t have not yet been filed.

One of the reasons for the delay is that the crime of seditious conspiracy is a difficult charge to prove as it involves the right to free speech. Therefore, the fact that these charges have been laid indicates that the Department of Justice must believe that it has an airtight case.

Rhodes, a militia leader with a Yale law degree, made it clear he was acutely aware of the difficulty of proving a conspiracy.

“I don’t do any illegal activities. I always stay on this side of the line,” he said in a recent online interview. “I know where the lines are, and it drives them crazy.”

One of these lines, the clear and present danger test, was drawn by Oliver Wendell Holmes in 1919 in Schenck v. United States.

“The strictest protection of free speech would not protect a man falsely shouting fire in a theater and causing panic,” Holmes wrote.

Rhodes and other supporters of the former president go far beyond this simple example of speech that creates the danger of violence.

Rather than a patron falsely shouting fire, the former president is more like an evicted theater operator falsely claiming the eviction was illegal and encouraging his patrons to take over the theater and kill the judge who sent him off. expelled.

Remember the “Mike Pence” kill chants.

Updates to the clear and present danger test don’t bode well for the Rhodes, the other rioters or the former president.

In 1957, the Supreme Court ruled in Yates v. United States that “indoctrination of a group for future violent action, as well as exhortation to immediate action…is not constitutionally protected.”

The indoctrination appears to be an eerily accurate depiction of the actions of Rhodes, the former president and other supporters in “stop theft” rallies, social media posts, digital messages, broadcast appearances and the January 6 rally that escalated into an attack on the United States. Capitol.

Numerous studies, court cases, audits and other examinations of elections in the United States have found an error rate of approximately 1 in a million.

Nevertheless, a significant minority of our population believes in conspiracy theories and outlandish allegations rather than the findings of our justice system and a large majority of government officials.

However, in 1969 the Court ruled in Brandenburg v. Ohio that speech “intended to incite or produce an imminent unlawful action and likely to incite or produce such action” is not protected.

While proving incitement to imminent lawless action is difficult at best, Attorney General Merrick Garland recently pointed out that the investigation relied on hundreds of small cases that would lead to larger charges.

Charging Rhodes and 10 others with seditious conspiracy marks an important step on the road to holding everyone involved in this seditious plot accountable.

Garland said in his Jan. 5 report that the Justice Department is tracking the physical evidence, digital evidence, money trail, and tips of more than 300,000 U.S. citizens.

“The Department of Justice remains committed to holding all January 6 perpetrators, at all levels, accountable under the law – whether they were present that day or were criminally responsible for the assault. against our democracy. We will follow the facts wherever they lead us.

They can lead to the eviction of a tenant.

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