Audio system and insurgents charged on January sixth utilizing the Smith Act

It is clear that a number of those who guided participants in the Stop The Steal rally towards Congress on January 6th did so with full knowledge that this group included white nationalist militias. Nor did that stop Trump from driving these forces to Congress with threats that a non-march would mean the end of the nation. It didn’t stop MP Mo Brooks from telling the crowd that “Today is the day American patriots start painting names and kicking their asses,” and cheering the crowd to follow Congress and accept: “We American patriots will go straight at them.” It didn’t stop Donald Trump Jr. from telling the crowd “You have a chance today: you can be a hero or a zero. And you have the choice, but we all watch. ”And that didn’t stop Rudy Giuliani from telling the assembled militiamen:“ If we are wrong, we will be fooled. But if we are right, many of them will go to jail. So, let’s do a combat test. “

Although Donald Trump was charged, civil or criminal measures against him or others are expected to fail on the day due to the very strict restrictions that the Supreme Court placed on calls to violence. For decades, the Court has insisted that the First Amendment protect calls to violence unless they are “clear and present”, which is generally interpreted as specific and immediate. So Trump could rail against Congress and even demand that it be harmed, but if he didn’t get down to the level of something like “march down there and hang Nancy Pelosi,” those words wouldn’t be criminal. Mo Brooks should be particularly happy about these judgments, because even under this standard his speech is on jan. 6 could have crossed the limit.

But in 1941 the government prosecuted 29 men under the Smith Act, with the specific allegation that the law was passed by Congress with the absolute intent to replace the need to demonstrate a clear and present threat. A district court upheld these convictions on appeal.

In this case, the Smith Act was used to prosecute members of the Socialist Workers Party affiliated with the Teamsters union. They were convicted not because they were immigrants, but because another part of the Smith Act contains a definition of “subversive activity”. This includes anyone who “prints, publishes, manipulates, publishes, circulates, sells, distributes or publicly displays information” in order to promote the overthrow of the government, as well as anyone who “organizes or helps or tries to organize a society, group or group. to organize them ”. , or gathering of persons who teach, advocate, or encourage the overthrow or destruction of such government by force or violence. “

What sparked the Teamsters’ conviction in 1941 was evidence that they published a newspaper promoting labor actions against military companies. In particular, the government also accused the members of the group “a small arsenal of pistols and rifles ”and that they conducted military exercises – a description that makes them sound a lot like a militia.

During the war, the Smith Act was used to prosecute individuals and groups that included some real Nazi sympathizers, fascists, and white racists, including George W. Christians and his Crusader White Shirts. But after the war it was mainly used to deport immigrants suspected of being communist. Some of those convicted under the Smith Act took their cases to the Supreme Court, which upheld their convictions. This included the Dennis v. United States case of 1949, in which 11 were members of the United States Communist Party condemned “in advocating the violent overthrow of the US government”.

The amazing thing about this case is that the men were charged not because of anything they actually said, did, or published, but because communist philosophy called for the violent overthrow of governments in general. The prosecution actually introduced the Communist Manifesto as evidence along with a collection of pamphlets and articles that were not authored by any of the defendants. “The prosecution argued that the texts advocated a violent revolution and that by adopting the texts as their political basis, the defendants were also personally guilty of advocating a violent overthrow of the government.”

If that sounds amazing, the men not only got five years in prison but lost 6-2 in the Supreme Court. In a deviating letter, Judge Hugo Black made it clear that “these petitioners have not been charged with attempting to overthrow the government. They have not been charged with overt acts of any kind aimed at overthrowing the government. They weren’t even accused of saying or writing anything aimed at overthrowing the government. “

But they were convicted anyway.

The Smith Act is still law. It has been used in the past to prosecute – and prosecute – immigrants and union organizers. It was used to imprison those who supported communism just to support the idea of ​​communism.

But if openly advocating the forcible overthrow of the rightful government is in violation of the Smith Act, let’s look at a few indictments. If storing weapons and conducting military exercises is evidence of sedition, there are some good candidates. And if promoting ideas that run counter to democracy can lead to someone being imprisoned … well, we’re going to need more cells.

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