# Is a call to preform a military coup illegal? **URL:** \ **Category:** Factual Questions\ **Created:** [April 26, 2020, 12:47pm UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603 "2020-04-26T12:47:44Z")\ **Posts on this page:** 12\ **Page:** 3
**Author:** ![RioRico](https://avatars.discourse-cdn.com/v4/letter/r/f04885/32.png) [@RioRico](https://boards.straightdope.com/u/RioRico)\ **Post date:** [April 29, 2020, 3:42am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/41 "2020-04-29T03:42:07Z")
\>\> Thread: Is a call to **preform** a military coup illegal? How does one pre-form a coup? Establish a template to be followed? Won’t a bit of improvisation be needed? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 29, 2020, 4:41am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/42 "2020-04-29T04:41:27Z")
> [@Reply](#): > > Is an unconstitutional law still legal? This isn’t a hypothetical. The Supreme Court has examined this very issue and at least overruled the state laws that prohibit it. There’s still ambiguity to me about whether that would apply to the United States Code, too. I think there would be room to distinguish _Brandenburg_ if the case came up in relation to the federal statute. Although the wording of the Ohio statute and the federal statute are similar, in _Brandenburg_ the Ohio statute was interpreted by the Ohio trial court as not recognising the distinction between inciting imminent violent action and merely advocating for violent overthrow of government in the abstract. It was given the broadest possible meaning by the Ohio trial court, and neither of the Ohio appellate courts gave reasons commenting on the interpretation of the statute. The Supreme Court of the United States was therefore bound by the interpretation of the statute given by the Ohio trial court: > [@SCOTUS per curiam](#): > > Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.[3] > > Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. However, if a charge were laid under the federal statute in the federal courts, and it reached the Supreme Court, that court would not be bound by the lower courts’ interpretation of the statute and could interpret it in a manner consistent with _Brandenburg_, as only criminalising advocacy of violent overthrow that was likely to cause imminent risk of violence. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 29, 2020, 7:21am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/43 "2020-04-29T07:21:52Z")
> [@RioRico](#): > > How does one pre-form a coup? Establish a template to be followed? Won’t a bit of improvisation be needed? If you want to be successful, you build up the individual elements in remote locations, then you bring everything to the site and put it all together quickly. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 30, 2020, 4:23am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/44 "2020-04-30T04:23:02Z")
> [@Reply](#): > > In other words, such incitement has to be likely to result in other people acting on it, and within finite time, right? If you call for a violent overthrow of the government, and you’re nobody and exactly zero other people are likely to answer your hue and cry, you may be fine. It’s going to be a judgment call, no matter what the books say. > > (slight tangent) > > I suppose if people start answering, then you’re fucked if you’re black or left of center. But if you’re armed Oregonians actually threatening this and then following it up with armed action, you’re still fine. Who knew the law could be so nuanced? > > Back to the OP. It’s really not very cut and dry. Nothing like this ever is. Either you get enough popular support that you make criminalizing/imprisoning you politically untenable, or you piss the wrong people off too soon without that support and then all bets are off. Do we really believe Bradenburg v Ohio would’ve been ruled the way it had if it were the Black Panthers instead of the KKK making such a threat? If Occupy started arming themselves, would they have been met with as much lenience as the Bundys or the coronavirus protestors? > > Without straying into GD territory, I think it’s safe to say that laws such as this can only really be tested in a given historical context of the times, depending on the who your judge is, who appointed them, who your lawyers are, who the politicians are, and where public opinion happens to stand in a particular decade. And, truthfully, how white and how rich you are. “Drunken uncle” would be a death sentence if you seemed even remotely threatening to the wrong cop in the wrong neighborhood. But if you’re white enough and have enough public backing… you should consider a career in conservative radio. > > There’s plenty of dead laws on the books, though most deal with matters far more mundane than violent revolution, and nobody really bothers correcting them because they don’t represent any meaningful electoral or political prospects for lawmakers and those who bribe them. Meanwhile, so-called “settled law” like abortion can be brought back as a zombie whenever it’s politically expedient to do so. > > Laws are neither written nor enforced equitably, and courts aren’t a vacuum of independent justice separate from their societal contexts. Whether you believe the Supreme Court of 2020 to be any more or less corrupt than at some other period in history, it is indisputable that the makeup of the justices affect the rulings that get solidified into law. Otherwise they wouldn’t dissent from one another, and nobody would bother trying to pack the court. Even the case in question, Brandeburg, had a lone dissenter. And that case itself overturned a previously unanimous Supreme Court decision made 40 years ago. The law is a living thing beholden to the opinions of mortals, no matter how much we try to embellish it with some mystical divine authority. > > You know that old Jefferson quote about the "[tree of liberty needing to be refreshed with the blood of patriots and tyrants](https://www.theatlantic.com/past/docs/issues/96oct/obrien/blood.htm)’? I think it’s a relevant thing to bring up here, because my understanding of it is that it’s often misunderstood as a call to arms, when in context, he was more saying “eh, we’ve only had a few puny rebellions here and there, they’re not a real threat… let them scream and wave their arms around, the nation will be fine, let’s not overreact here and feed the hysteria even more.” > > No matter what’s on the books, calls to violent revolution are too thorny a topic to just treat like another OJ case. Make the wrong ruling, piss the wrong people off, and the decision itself would have the potential to spur violence. Thankfully, the United States tends to err on the side of letting idiots scream out loud, against a backdrop of infinite other idiots screaming out loud, rather than martyring them. For now. But with changing tides, we could very well see this put to the test again within our lifetimes. And if an actual revolution happens, nobody is going to be sitting around wondering, “Wait, is this all legal?!” To the first part, that is generally correct although it could be stated differently and still be correct. It is unknown how the Supreme Court would ultimately say it any different than it did. It comes down to a judge doing his or her level best to apply the concept of Free Speech and what it means. If I was a judge in Brandenburg my thought process would follow something along the lines of that our founding fathers wanted a robust exchange of political ideas. And it is further clear that although they wanted that robust exchange, the right is not absolute. We cannot have revolutions or violent military coups because then that right, and all other rights are in danger. And serious advocacy of revolution cannot be permitted. However, humans are humans. Especially in political disagreements, people get passionate and may cross certain lines. As a judge and as an American, would I prefer to have the government infiltrate disfavored groups and once they say certain “magic words” they get arrested? I would not because then you will have less political speech if people have to very carefully choose their words at all times and one slip up gets them thrown in prison. It is very easy to see how that can go down the slippery slope and how it already has in this country, see the Holmes “fire in a crowded theater” case where he argued that protesting the draft in a time of war could be prohibited. In my mind, that is not what free speech means. We want such a broad exchange of ideas that the government can only prosecute you if you clearly and unequivocally go over the line so far as to make people believe that you are inciting imminent lawless action. Of course, that doesn’t make future cases any easier, because all I’ve done is created a new line where we have to debate whether this or that falls on what side of it. But at least in the future if we get cases wrong, they will still have been much more extreme than typical conversation and nobody should worry about being prosecuted for criticizing the government. The other stuff is not really GQ, but I would say that of course the Supreme Court would have sided with the Black Panthers. The KKK was certainly not a friend of the Warren Court. I don’t have a cite, but a couple of years later a draft protester, on the National Mall in D.C. said something to the effect of “LBJ doesn’t want to give me a rifle because the first person in my crosshairs will be him.” He was arrested and charged with threatening the life of the President. The Court overturned his conviction citing Brandenburg. Also I think it is well known that the poor are treated worse in the system. And it is not because they have shitty public defenders; many public defenders are excellent. I think that is a function that, as you said, people are human: judges, prosecutors, and jurors. When they see an accused in front of them that is different from them, they lose empathy. Once I can get a jury to say to themselves, “That could be me sitting there” I’ve won. When you have a client that lives in squalor, is prison tatted up, has three kids by three different fathers, uses drugs, etc. you can never get there. ---
**Author:** ![alexawiliams784](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alexawiliams784/32/417_2.png) [@alexawiliams784](https://boards.straightdope.com/u/alexawiliams784)\ **Post date:** [April 30, 2020, 10:38am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/45 "2020-04-30T10:38:00Z")
I think that it would be illegal. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [April 30, 2020, 10:48am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/46 "2020-04-30T10:48:40Z")
> [@RioRico](#): > > \>\> Thread: Is a call to **preform** a military coup illegal? > > How does one pre-form a coup? Establish a template to be followed? Won’t a bit of improvisation be needed? Look up how Castro came to power in Cuba. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 30, 2020, 7:07pm UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/47 "2020-04-30T19:07:59Z")
Note that the President is also explicitly protected by Federal law as to assassination, kidnapping, assault, or conspiracy to do so: [18 U.S. Code § 1751 - Presidential and Presidential staff assassination, kidnapping, and assault; penalties | U.S. Code | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/uscode/text/18/1751). Hard to imagine a military coup without someone actually laying hands on or threatening the President. > [@Little\_Nemo](#): > > …members of the armed forces also swear an oath to uphold the Constitution. Of course. And the Framers, in their wisdom (no sarcasm), required _every_ American public official, from your local dogcatcher to the President himself, to swear an oath to the United States Constitution: \*The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. \* Art. VI, cl. 3. > [@Little\_Nemo](#): > > If you want to be successful, you build up the individual elements in remote locations, then you bring everything to the site and put it all together quickly. And be sure to time it to miss the KH-11 overpasses. ---
**Author:** ![RioRico](https://avatars.discourse-cdn.com/v4/letter/r/f04885/32.png) [@RioRico](https://boards.straightdope.com/u/RioRico)\ **Post date:** [April 30, 2020, 9:16pm UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/48 "2020-04-30T21:16:51Z")
> [@Elendil\_s\_Heir](#): > > …the Framers, in their wisdom (no sarcasm), required _every_ American public official, from your local dogcatcher to the President himself, to swear an oath to the United States Constitution… And of course the oath is never broken. Except by oath-breakers in the War of Southern reason who deserted from US military service. And by all too many politicians. Oath-breaking unfortunately isn’t grounds for removal or other punishment so an oath is only an “I promise!” with crossed fingers. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 30, 2020, 10:32pm UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/49 "2020-04-30T22:32:58Z")
> [@RioRico](#): > > And of course the oath is never broken. Except by oath-breakers in the War of Southern reason who deserted from US military service. And by all too many politicians. Oath-breaking unfortunately isn’t grounds for removal or other punishment so an oath is only an “I promise!” with crossed fingers. Sure, people break oaths and break laws. But they should remain self-aware. They shouldn’t act like Sovereign Citizens and pretend that what they’re doing is legal. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 1, 2020, 1:06am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/50 "2020-05-01T01:06:59Z")
Better an oath than no oath. For people of good conscience and reasonable intelligence, it marks a moment between when you had no obligation, and when you have a very important one. ---
**Author:** ![MarvinKitFox](https://avatars.discourse-cdn.com/v4/letter/m/7ba0ec/32.png) [@MarvinKitFox](https://boards.straightdope.com/u/MarvinKitFox)\ **Post date:** [May 1, 2020, 6:18am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/51 "2020-05-01T06:18:12Z")
OP:“Is a call to preform a military coup illegal?” Well, it sure is a crime against Spelling. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [May 1, 2020, 6:37am UTC](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603/52 "2020-05-01T06:37:26Z")
> [@MarvinKitFox](#): > > Well, it sure is a crime against Spelling. And [Tori has lawyers on retainer.](https://printylawfirm.com/personal-injury-lawyer-tori-spelling-suing-benihana-after-falling-on-grill/) [Previous page](https://boards.straightdope.com/t/is-a-call-to-preform-a-military-coup-illegal/852603.md?page=2)