Not really.
Treason doth never prosper, what’s the reason?
For if it prosper, none dare call it Treason.
You have Brandenburg v. Ohio: Google Scholar which holds that it is not unlawful to advocate violence for political change unless your statements are an incitement of imminent lawless conduct.
So although the OP of that thread would likely (possibly) be free from conviction of a criminal offense, the board still has a stricter rule that he may not advocate for illegal activity, period. An a military overthrow of a president because you disagree with him politically is about at the top of illegal things you can possibly do.
In addition to breaking some laws, members of the armed forces also swear an oath to uphold the Constitution.
It is, in one key area: the date of US independence.
In US law, independence is July 4, 1776, of course.
But in British law, the date of independence was September 3, 1783: the date of the Treaty of Paris, in which His Britannic Majesty recognised the independence of the thirteen United States.
The point actually was raised in some court cases in both the UK and the US in the years after the conclusion of hostilities, because things like citizenship and ownership of real property sometimes hinged on it. The American and British courts used the different dates in their legal analysis, within each country’s own legal systems.
And the Constitution does not provide for the military forcibly removing the president from office.
And indeed the constitution that was created in the aftermath, before it had a Bill of Rights, had already more than one passage referring to combatting rebellions and insurrections.
I believe that the act of revolution in 1776 was a violation of British law.
Indeed. However the North American revolutionaries were not threatening to infect the colonial or homeland populaces with smallpox or bubonic plague. Or did I miss that bit?
In these parts - we call that voting - happens every 2 or 4 years depending on the given election.
Glad you pointed this out. I’m no lawyer, but doesn’t Bradenburg v. Ohio suggest that 18 USC 2385 may actually be unconstitutional? If I’m understanding that ruling right, it is apparently a restriction on free speech to criminalize advocacy of violent overthrow of government unless that advocacy is both likely to succeed, and at a definite point in time. In that case, the KKK was advocating violent overthrow of government, and the supremes essentially said “eh, he’s just ranting out loud to the world out loud, it’s not a credible threat and you can’t punish that.”
For those who don’t want to read the original, some summaries:
Of course, do you really want to put this to the test, with the Supreme Court as corrupted as it is?
I think it’s worth keeping in mind that our laws are designed for stability and the protection of people, power, and property all in balance, not for maximum justice, effective rule, or democratic participation. It’s all about a balance of power and providing nonviolent means to change, means that never really foresaw modern efficiencies in manipulation of the populace and electoral systems.
First, I would take issue with the “likely to succeed” part. If you are making a serious, imminent threat to overthrow the government, then it would be punishable, even if woefully inadequate to the task.
Second, I agree. The Supreme Court at the time was basically saying that a few hundred idiots in a field somewhere talking about killing people is just spouting off…its free speech…best to let them sober up in the morning instead of arresting them and causing their zeal to harden. It was the 60s and the government was being overbearing on anti-government protest. SCOTUS wanted to push back.
But where that fine line lies has been the subject of many law review articles since. It is very difficult to determine where a prosecutor somewhere might want to take up a case. It cannot be as silly as Brandenburg, but it is clearly not so far as having an army of 30,000 outside of Washington, D.C. ready to storm the White House while saying the same thing. Where in the middle it lies is where lawyers make the big bucks. 
Finally, I disagree with your statement about the “corrupted” Supreme Court. I’m sure it would be a 9-0 (okay, maybe 8-1 Thomas, 7-2 Alito, Thomas tops) to uphold Brandenburg. Nobody wants to arrest drunk assholes for spouting off out in the middle of nowhere.
Are you sure? I thought that was the whole point of Bradenburg. At 448:
https://scholar.google.com/scholar_case?case=15538842772335942956&q=brandenburg+v+ohio&hl=en&as_sdt=6,36#p448
(emphasis mine)
That’s a pretty strong distinction. And they reference 18 USC 2385 directly as a footnote:
We’ll have to disagree then, and save it for GD or the Pit
Yeah, we have drifted into interpretation, but in general the factual GQ answer is yes, the law as written ***does ***forbid advocacy to overthrow the government.
That for the purposes of applying it in an actual prosecution, the case rulings as they stand require it to involve a somewhat realistic threat, more than just the equivalent of a drunk uncle ranting at the in-laws, is an expansion on that answer.
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.
Until the day it is so ruled against by the competent Court, the law stands, regardless of your or my opinion.
And as per the case law about its interpretation, the law does not criminalize mere expressions of opinion. You can stand in the public square yelling “What this country needs is a revolution!” all day.
The Supreme Court holds laws unconstitutional in two ways: facially and as applied. The general rule (not always followed) is that a law is facially unconstitutional only if it cannot be applied constitutionally in any scenario.
In this case as the law can be applied to a lot of speech and conduct, it is still good law, it just cannot be ultra-literally applied to your uncle at a picnic after his fifth beer talking about how someone should wax Nancy Pelosi.
To your other point, your bolded part “and is likely to incite or produce such action” the “such action” is the imminent lawless action, not the success of the endeavor.
IANAL - This was my thought too - doesn’t it fall in the same category as incitement to riot, threats of bodily harm, or inciting other crimes? If you make a generalized statement - “we should get the army to overthrow the swamp and create a new government” is very different from a specific threat “assemble your troops on Thursday, colonel, and march on the Capitol.”
Of course, the distinction between specific and general is up to the courts to decide. The famed quote “you can’t yell ‘Fire’ in a crowded theatre” was said in order to convict those advocating that draftees refuse to appear and serve by distributing pamphlets; but was judged by one of America’s greatest judges as the worst decision of his career.
I agree with all of this except for a minor quibble over the threats of bodily harm. That is a similar yet distinct doctrine. For a threat to be actionable, it must be a “true threat” that is not that the person threatening actually intends to do the act, but that the listener would reasonably perceive it to be a threat.
Again, many law review articles on that, but the basic example is the “I’m gonna kill you” said while laughing after you were made the punchline of a joke. No reasonable person hearing that statement should fear that the person who said it is really going to kill them.
However, the exact same words with a serious and menacing look said in a dark alley would be a true threat.
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’? 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?!”
Well, they did decide. Bradenburg v Ohio also partially overturns that specific example. Though it continues to (erroneously) make the rounds in general society as the “free speech test,” it actually isn’t anymore, because Bradenburg replaced it with the imminent lawless action test. Shouting fire in a crowded theater - Wikipedia