Sedition and Domestic Terrorism

Since the 1960s, the Supreme Court has sharply defined and limited the constitutionally permissible contours of seditious libel. With respect to false statements critical of the government, the Court has announced that "under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–340 (1974)). Moreover, although false statements of fact about a governmental official may give rise to a civil or criminal action for libel, the Court has held that such actions require proof that the speaker acted either with knowledge of falsity or with reckless disregard for the truth (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).

Finally, the Court has held that mere criticism of government may not be suppressed. The First Amendment permits punishment of seditious utterances only if they expressly advocate immediate unlawful action and are likely to produce such action imminently (Brandenburg v. Ohio, 395 U.S. 444 (1969)). In effect, the Court's affirmation of our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" renders the traditional crime of seditious libel unconstitutional (New York Times Co., 270).

After a nearly thirty-year hiatus, the crime of "seditious conspiracy," 18 U.S.C. § 2384 (2000), made a surprising reappearance in the 1980s and 1990s as an instrument for combating domestic terrorism. The most notorious case arose from the bombing of the World Trade Center in New York City by a group of individuals who perceived themselves to be involved in a Muslim holy war (or "jihad") against the United States. Some commentators reacted with dismay, arguing that the decision to prosecute under § 2384 rather than under general prohibitions against violence conveyed that the World Trade Center defendants were being condemned for their political and religious motivations and not just for the harms they caused. Nevertheless, the United States Court of Appeals for the Second Circuit rejected a First Amendment challenge patterned on this objection (United States v. Rahman, 189 F.3d 88 (1999)).