How far can you go in advocating overthrow of the US before 1st Amendment rights no longer apply?

[astro]

In reading the wiki on the Burr Conspiracy Arron Burr got off because he only wrote about, talked about and plotted the overthrow of the US Government but did not actually take up arms against the US.

Is this still the standard? Where is the bright line in how far a person can go in advocating overthrow of the US Government in 2017 before they are in violation of the law?

The Burr conspiracy was a suspected treasonous cabal of planters, politicians, and army officers in the early 19th century. The cabal was allegedly led by Aaron Burr, the former Vice President of the United States (1801–1805); according to the accusations against him, Burr’s goal was to create an independent country in the center of North America and/or the present-day Southwestern United States and parts of present-day Mexico. Burr’s version was that he intended to take possession of, and farm, 40,000 acres (160 km2) in the Texas Territory leased to him by the Spanish Crown.
President Thomas Jefferson ordered Burr arrested and indicted for treason, despite not providing firm evidence. Burr’s true intentions remain unclear to historians, some of whom claim he intended to take parts of Texas and some or all of the Louisiana Purchase for himself. Burr was acquitted of treason, but the trial destroyed his already faltering political career.

Marshall had to consider the definition of treason and whether intent was sufficient for conviction, rather than action. Marshall ruled that because Burr had not committed an act of war, he could not be found guilty (see Ex parte Bollman); the First Amendment guaranteed Burr the right to voice opposition to the government. To merely suggest war or to engage in a conspiracy was not enough.[13] To be convicted of treason, Marshall ruled, an overt act of participation must be proven with evidence. Intention to divide the union was not an overt act: “There must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.” [14] Marshall further supported his decision by indicating that the Constitution stated that two witnesses must see the same overt act against the country. Marshall narrowly construed the definition of treason provided in Article III of the Constitution; he noted that the prosecution had failed to prove that Burr had committed an “overt act,” as the Constitution required. As a result, the jury acquitted the defendant.[15]

[Count_Blucher]

@astro

How far can you go in advocating overthrow of the US before 1st Amendment rights no longer apply?

Facebook was so far over the line with Both of Barack Obama’s administrations that I’d guess that precedent has been set to ignore all internet posts.

[msmith537]

Here’s an excerpt of relevant law:
8 U.S. Code § 2384 - Seditious conspiracy
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

18 U.S. Code § 2384 - Seditious conspiracy

IANAL, but I think the First (and Second) Amendment ends and sedition laws begin when you actually start the actual planning and implementation.

But it’s still a big grey area IMHO. Technically Clive Bundy’s occupation of Malheur National Wildlife Refuge sounds pretty close to the letter of the sedition law to me. Then again, you don’t want to arrest people for treason every time they have a “sit in” at a Federal building or facility.

[jtur88]

It is highly likely that a court would apply the current definition of conspiracy, deeming such an act to be a specific form within the broad definition of conspiracy.
*
Under most U.S. laws, for a person to be convicted of conspiracy, not only must he or she agree to commit a crime, but at least one of the conspirators must commit an overt act (the actus reus) in furtherance of the crime*. – Wikipedia

[Richard_Parker]

Abstract advocacy? Never.

Telling a bunch of people in a room with shotguns ready to take over the local federal building? Depends on the facts.

IOW, the line is the immediacy and likelihood of the lawless action.

[Little_Nemo]

I think a key element is that your supposed goal is overthrowing the American government. That’s a pretty daunting project. Even if you convince a couple thousand people to join your movement and you have access to weapons let’s face facts; you’re going to lose the battle. You’re going to be outnumbered 18-1 just by the Coast Guard.

And that’s an important issue. In order to legally suppress speech you have to show there is a clear and present danger. That’s relatively easy when you’re trying to show that speech is advocating something like rioting or assassination. But proving somebody’s attempt at overthrowing the government was likely to succeed if unchecked is almost impossible for the reasons I gave.

[drewder]

As I understand it you only are in trouble if you advocate the VIOLENT overthrow of the government.

[RealityChuck]

There’s no cut-and-dried answer. Unless you actually take arms, it would depend on all sorts of factors.

[PatriotGrrrl]

There’s a big difference between wanting overthrow a government and wanting to make an existing government do what you want.

Many people or groups who seem like they want the first would be quite satisfied with the second, but it’s not always easy to tell the difference.

[Richard_Parker]

@Little_Nemo

I think a key element is that your supposed goal is overthrowing the American government. That’s a pretty daunting project. Even if you convince a couple thousand people to join your movement and you have access to weapons let’s face facts; you’re going to lose the battle. You’re going to be outnumbered 18-1 just by the Coast Guard.

And that’s an important issue. In order to legally suppress speech you have to show there is a clear and present danger. That’s relatively easy when you’re trying to show that speech is advocating something like rioting or assassination. But proving somebody’s attempt at overthrowing the government was likely to succeed if unchecked is almost impossible for the reasons I gave.

@drewder

As I understand it you only are in trouble if you advocate the VIOLENT overthrow of the government.

@RealityChuck

There’s no cut-and-dried answer. Unless you actually take arms, it would depend on all sorts of factors.

These answers are all partly wrong. Clear and present danger is no longer the test. It’s ok to advocate violent overthrow. And the factors are clear: immediacy and likelihood of the unlawful action.

[Tom_Tildrum]

@Richard_Parker

Abstract advocacy? Never.

Telling a bunch of people in a room with shotguns ready to take over the local federal building? Depends on the facts.

IOW, the line is the immediacy and likelihood of the lawless action.

I’m not sure Anwar Awlaki fits this paradigm. ISTR that the evidence against him for anything more than abstract advocacy tended to be relatively thin and conclusory.

[Richard_Parker]

@Tom_Tildrum

I’m not sure Anwar Awlaki fits this paradigm. ISTR that the evidence against him for anything more than abstract advocacy tended to be relatively thin and conclusory.

They never purported to provide all the evidence justifying the strike. And, quite recently, it was revealed that they actually had some significant evidence beyond advocacy.

That said, obviously, the fact that a government flouts the rules doesn’t mean the rules don’t exist. Awlaki’s family never got a hearing on the merits about whether the strike violated his constitutional rights.