Sedition involves any incitement to resist, or insurrection against, the lawful authority of the United States. Sedition is defined in the U.S. criminal code at 18 U.S.C. §2384. Under that statute, sedition requires the concerted acts of two or more people, and can take three different forms:
(1) Any attempt to take, seize, control, or possess any property of the United States without authority or contrary to law
(2) The use of force to either oppose governmental authority or to hinder, prevent, delay, or interfere with the execution of any law of the United States
(3) A conspiracy to overthrow, destroy, or put down the American government by force, or to wage war against it
As a general rule, sedition requires more than just words or ideas. There must be an immediate call to engage in one of the three activities listed above. Encouraging citizens to physically resist the government at some unspecified time in the future is generally protected under the First Amendment as free speech and not considered sedition. A person convicted of sedition may be fined or imprisoned for up to twenty years.
The Alien Registration Act of 1940, also known as the “Smith Act,” makes it a federal crime to teach or advocate the overthrow of the American government, or to have membership in any organization that advocates the same. This law, though seldom used, remains in effect today and can theoretically be used to prosecute actions that are closely related to sedition. However, the Smith Act primarily targets advocacy rather than the direct conspiracy or acts of sedition.
While the Smith Act was used during the 1940s and 1950s, particularly in cases involving communists and socialist groups, its use has significantly diminished, and many of its convictions were later overturned or discredited due to concerns about free speech.
While sedition does not require any type of overt act, an insurrection is a violent uprising against the legitimately instituted government, officials, or authority of the United States. A person may verbally advocate for resistance to the laws of the United States and be potentially charged with sedition. If that same person goes beyond verbal statements and participates in any physical attempts to subvert U.S. laws, that act will be considered insurrection.
There’s a common misunderstanding that any act that opposes the duly elected government, or seeks to overthrow the duly elected government, is treason. Treason, though, is very narrowly defined in the United States Constitution. It may be charged only when a person actively wages war against the United States or gives aid and comfort to a duly acknowledged enemy of the United States. Under the Constitution, a person may be convicted of treason only upon either confession or the testimony of two witnesses.