by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Hadley Arkes reminds Federalist readers of the U.S. Supreme Court’s past consideration of protests and sedition.
The truth that dare not speak its name these days is that, with one or two notable exceptions, the ever-praised “demonstration” has always contained in its inner logic the premise—and the threat—that force rules. That curmudgeon of a philosopher, Thomas Hobbes (1588-1679), saw that inner meaning at once.
“It may be lawful,” he wrote, “for a thousand men to join to a petition to be delivered to a judge or magistrate; yet if a thousand men come to present it, it is a tumultuous assembly; because there needs but one or two for that purpose.”
A mass gathering in the street does not provide a format for discussion, nor is it a medium for conveying a substantive argument. The very point of it is make an impression on the authorities through the sheer force of numbers, to suggest wide support for the movement and perhaps political costs for resisting it.
The demonstration bids to carry the decisions of the day, in the halls of government, by its brute strength of numbers. …
… Media commentators brought back some old language to suggest that the Jan. 6 attack on the Capital was an act of “sedition.” In that case the heated remarks of President Trump in stirring the crowd with hostility to some of the men contained in that building had to be an offense of “seditious libel.”
But 57 years ago, in New York Times v. Sullivan, the Supreme Court rejected the notion of seditious libel and intimated that the Sedition Act of 1798 had really been unconstitutional. As one sage commentator remarked, the court put the First Amendment on a new footing: the government may not freely use the laws of libel to silence its citizen-critics. And those critics should not be held to a strict standard of truth, because political speech is often heated, mistaken speech, and it needs “breathing space.”