Guest Column: Freedom of speech and the crowded theater – Daily Ardmoreite

Oath Keepers founder Stewart Rhode was charged this week with seditious conspiracy for his role in the January 6 attack on the U.S. 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 delay the execution of any law of the United States. Seditious conspiracy also includes using 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 U.S. Capitol. More than 700 of the estimated 2,500 people who entered the Capitol illegally that day have been criminally charged, most with misdemeanor offenses.

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

However, he and 10 other defendants have been indicted in U.S. District Court in the District of Columbia with Seditious Conspiracy, Conspiracy to Obstruct an Official Proceeding and six additional counts.

In other words, Rhodes and his collaborators are accused of being part of a plan to escalate so-called stop the steal rallies into a violent obstruction of the Congressional duty to count electoral votes.

Considering the ongoing attempt to portray the election as fraudulent, public social media posts encouraging violence, organized military tactics caught on video, and mountains of other evidence, many have been wondering why these types of charges had not yet been filed.

One reason for the delay is the crime of seditious conspiracy is a difficult charge to prove because it implicates the right to freedom of speech. Therefore, the fact these charges have been filed indicates the Department of Justice must believe they have an airtight case.

Rhodes, a militia leader who earned a law degree from Yale, made it clear he is very well aware of the difficulty of proving a conspiracy.

I dont do 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 those lines, the clear and present danger test, was drawn by Oliver Wendell Holmes in 1919 in Schenck v. United States.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic, wrote Holmes.

Rhodes and other supporters of the former president go several steps beyond that simple example of speech that creates a danger of violence.

Rather than a customer falsely shouting fire, the former president more closely resembles an evicted theater operator falsely claiming the eviction was illegal and encouraging his clients to take over the theater and kill the judge who evicted him.

Remember chants of kill Mike Pence.

Updates to the clear and present danger test do not seem to bode well for the Rhodes, other rioters, or the former president.

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

Indoctrination seems to be an uncannily accurate description of the actions of Rhodes, the former president and other supporters in stop the steal rallies, social media posts, digital messages, broadcast appearances and the January 6 rally that escalated into an attack on the U.S. Capitol.

Numerous studies, court cases, audits and other examinations of election in the United States have revealed a rate of error of about 1 in one million.

Nevertheless, a significant minority of our population believe the conspiracy theories and wild allegations rather than the findings of our judicial system and a vast majority of government officials.

However, in 1969 the Court ruled in Brandenburg v. Ohio that speech directed to inciting or producing imminent lawless action and is likely to incite or produce such action is not protected.

While proving inciting imminent lawless action is difficult at best, Attorney General Merrick Garland recently pointed out that the investigation has been built on hundreds of smaller cases that would lead to more significant charges.

Charging Rhodes and 10 others with seditious conspiracy marks an important milestone on the path toward holding all those who were involved in this seditious conspiracy accountable.

Garland stated in his January 5 report on that the Department of Justice is following the physical evidence, the digital evidence, the money trail, and tips from more than 300,000 American citizens.

The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.

They may lead to an evicted tenant.

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Guest Column: Freedom of speech and the crowded theater - Daily Ardmoreite