History of the Sedition Act
There have been two famous federal sedition acts in U.S. history. The first, dating from 1798, was actually written to restrict the speech of Thomas Jefferson's supporters. Jefferson, who had lost to John Adams in 1796 but still enjoyed popular support and had planned to make another run in 1800, relied on the heated rhetoric of newspaper publishers and pamphleteers, who often attached to Adams epithets such as "old," "querulous," "bald," "blind," "crippled," and "toothless." Since this was not only the pre-television era, but also the pre-photograph era, these kinds of criticisms actually hurt Adams politically. So the Sedition Act of 1798 naturally included a clause criminalizing speech that held the President in "disrepute," but it also dealt with the sort of speech to which Gingrich refers: Speech that "shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination," as well as speech that might "aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government." Jefferson beat Adams so handily in 1800 that Adams' Federalist Party never won the White House again, and soon vanished from national politics entirely. The Act expired in 1801.The second infamous Sedition Act was passed in 1918 during the height of the first Red Scare. Among other things, the Act criminalized "any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies." Found constitutional by the U.S. Supreme Court in Schenck v. United States (1919), it was repealed in 1921, and those prosecuted under it were pardoned.
In Defense of Newt
Critics of Gingrich's remarks frequently state that he is interested in repealing the First Amendment. As noted above, this isn't exactly true. Neither of the prior sedition acts repealed the First Amendment, and in fact the Act of 1918 was (inexplicably) found by an earlier Court to be consistent with the First Amendment. All this despite the fact that it was far more repressive than what Gingrich suggests--banning the flying of foreign flags, for instance, and virtually any speech critical of the government during wartime. So what is being threatened here is not so much the First Amendment as our current, libertarian interpretation of the First Amendment. Gingrich is trying to encourage us to take a step back to 1919, not 1788. This doesn't make his proposal a good idea, but it should be viewed in this context.It is also worth mentioning that in much of Europe, including France, Germany, and Britain, some of the sort of speech to which Gingrich refers is already illegal. Promoting hatred, for example, is a punishable offense in many liberal democracies that don't happen to have our First Amendment tradition. The Austrian trial of Holocaust denier David Irving serves as a case in point; in the United States, Irving could have denied the Holocaust to his heart's content. So what Gingrich is proposing is not really any less libertarian than the policies many of our allies have already enacted.
What Gingrich is asking us to do, in other words, is to return to an older interpretation of the First Amendment, one more in line with the kind of approach to free speech we might see in Europe, as part of our response to 9/11. So Gingrich's proposal is not quite as frighteningly totalitarian as it might have first appeared.
But he's still dead wrong.
Where it Stands
The word Gingrich mainly uses is "advocacy," but it is legal, in the United States, to advocate any point of view. If a U.S. citizen wishes to say that al-Qaeda has it right, then under any meaningful interpretation of the First Amendment, the citizen has that freedom. I can make no better argument than to once again quote Thomas Jefferson:The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws ... Reason and free enquiry are the only effectual agents against error ... It is error alone which needs the support of government. Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons.The "fallible men" argument, by the way, is worth bearing in mind. The 1918 Sedition Act was theoretically created to deal with "anarchists," mad-bomber terrorists who had killed hundreds of American citizens. But who was it ultimately enforced against? Immigrants, communists, liberals, and antiwar activists. If we restrict the First Amendment in this way, we should not operate under the illusion that only terrorists will be prosecuted.
Now, the question of practical instruction in violent methodology is a legitimate one, but it is one already addressed by current law. Inciting riots is illegal; participating in the planning of a suicide bombing, or any other serious criminal act, is illegal under conspiracy laws; death threats are illegal; and so forth. It may well be that laws against the distribution of bomb-making recipes, or against "enemies lists" with names and addresses, need to be strengthened in the post-9/11 world--but that wasn't what Gingrich was primarily talking about. He was talking about advocacy.
We also need to bear in mind that laws restricting Internet content advocating terrorism will be completely unenforceable, since terrorists can just as easily have the material hosted overseas. I don't know how many terrorists use U.S. Internet service providers, but encouraging them to outsource their web hosting isn't going to end, or even significantly affect, the terrorist threat.
Few things would give Osama bin Laden and his ilk more pleasure than the end of the United States as an open society, but now is the time to make it clear that we will not allow the most basic concepts of free speech to become a casualty of the war on terror.
