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From Judge Sheri Polster Chappell (M.D. Fla.) yesterday in Shriteh v. NYP Holdings, Inc.:

This is a defamation case. Plaintiff operates seventeen vape retail stores in southwest Florida under the trademark name “the King of Vape.” Christenson, writing for the New York Post, authored and published an article about Plaintiff titled, “Florida’s Israel-hating ‘King of Vape’ Faces Bipartisan Crackdown on Sale of Illicit, Kid-Friendly Chinese E-cigs.” The article allegedly included several false statements about Plaintiff resulting in damages….

When ruling on a prior motion to dismiss, the Court determined Plaintiff is a public figure subject to the actual malice standard. Why? Because Plaintiff’s own allegations indicated he was a public figure.

Specifically, in the Second Amended Complaint (and each preceding complaint), Plaintiff alleged that prior to immigrating to the United States in 2000, he was “a respected journalist working in Gaza and reporting for the New York Times, Reuters, and CBS News, whose courageous efforts were recognized in 1993 when he received the John R. Aubuchon International Freedom of the Press Award.” He also alleged he co-authored a book, Beyond Intifada, with “esteemed Israeli professors” which “has been recognized for its contribution to understanding the human impact of the Israeli-Palestinian conflict.” And he repeatedly alleged that Defendants issued and made the defamatory statements with actual malice.

The Court held that these allegations indicate he is a public figure and, thus, he must allege Defendants acted with actual malice. And because Plaintiff failed to plausibly do so, the Court dismissed the Second-Amended Complaint with leave to amend to adequately allege actual malice.

Rather than comply with the Court’s directive and sufficiently allege actual malice, Plaintiff tried to get clever. In the Third-Amended Complaint, Plaintiff removed all factual allegations the Court relied upon when determining Plaintiff is a public figure. And he now argues he does not need to allege actual malice because nothing in the Third Amended Complaint suggests he is a public figure. But such creative pleading will not fly.

When a court permits a plaintiff leave to amend after dismissing a complaint, a plaintiff does not have carte blanche to amend as he sees fit. Rather, the amendment is limited to the scope permitted and instructed by the court—i.e., to correct identified pleading deficiencies. And although a court generally will grant leave to amend under Federal Rule of Civil Procedure 15(a), the court need not do so if the plaintiff is acting in bad faith.

Not only was Plaintiff’s amendment omitting allegations that implicate him as a public figure incompliant with the permitted leave to add factual allegations of actual malice, but the amendment was clearly a calculated effort to end-run the Court’s order concluding Plaintiff is a public figure. Permitting such bad-faith tactics would allow Plaintiff “to manipulate the course of litigation.” Put simply, Plaintiff’s allegations in the second amended complaint let the cat out of the bag that he is a public figure. He cannot put the cat back into the bag in the hope of keeping his case alive.

On that score, Plaintiff still has not plausibly alleged facts suggesting Defendants acted with actual malice. He does not even try. And the Court construes his attempt to dodge status as a public figure and avoid pleading actual malice as a concession that he cannot do so. Because the Court already provided Plaintiff an opportunity to cure this deficiency, the Court dismisses Plaintiff’s complaint with prejudice.

One more point. In his response, Plaintiff also moves under Rule 54(b) for the Court to reconsider its prior holding that he is a public figure. But he cannot seek affirmative relief through a response brief…. “A request for a court order must be made by motion.” …

Benjamin Joseph Tyler and Scott D. Ponce (Holland & Knight LLP) and Chelsea T. Kelly, Laura R. Handman, and Leena M. Charlton (Davis Wright Tremaine LLP) represent defendants.

The post Libel Suit by "King of Vape" Against N.Y. Post, Over Allegations of Misconduct and Anti-Israel Actions, Thrown Out appeared first on Reason.com.

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From Thursday’s decision in The Satanic Temple, Inc. v. Newsweek Digital LLC, written by Judge Alison Nathan and joined by Judges José Cabranes and Sarah Merriam:

In October 2021, Newsweek Digital LLC (Newsweek) published an article entitled “Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit.” The article, written by Washington-based journalist Julia Duin, details several internal disputes between members of The Satanic Temple (the Temple) and its leadership. The Satanic Temple responded by suing Newsweek for libel, claiming that many statements in the article were false and defamatory. By the time the case reached summary judgment, only one statement remained at issue: A quote from a former Satanic Temple member describing “[a]ccounts of sexual abuse being covered up in ways that were more than anecdotal” (the cover-up quote) within the organization.

On summary judgment, the district court concluded that no rational juror could find Newsweek either knew or entertained serious doubts that this quote was false prior to publication, and therefore it granted summary judgment in favor of the magazine…. [I]n recognition of New York’s choice to offer greater protection to defamation defendants than the First Amendment requires, we affirm ….

New York’s anti-SLAPP statute requires libel plaintiffs to show “actual malice” (i.e., knowing or reckless falsehood) when they sue over publicly made statements on matters of “public interest,” whether or not the statements are about public figures. In this respect, it protects libel defendants more strongly than First Amendment law does. The court held that this provision of the anti-SLAPP statute is substantive rather than procedural, and thus applies in federal court. And it reasoned,

[New York] state’s anti-SLAPP protections apply to, as relevant here, “any communication in a place open to the public or a public forum in connection with an issue of public interest[.]” … [T]he allegedly defamatory statement was printed on Newsweek’s website, which is indisputably a “public forum.” … [And] the article statement addresses “an issue of public interest[.]”Read in its allegedly defamatory manner, the statement suggests that The Satanic Temple—a nationwide organization with over 500,000 members—habitually concealed or failed to address internal complaints of sexual abuse. New York courts have concluded that the amended anti-SLAPP statute applies in similar cases, as well as in cases where the public interest is far less clear, see Aristocrat Plastic Surgery, P.C. v. Silva (N.Y. App. Div. 2022) (concluding that plaintiff’s online reviews of plastic surgeon addressed an issue of public interest because they “provide[d] information to potential patients”). We are mindful, too, that we must construe “[p]ublic interest … broadly,” to include “any subject other than a purely private matter.” N.Y. Civ. Rights Law § 76-a(1)(d)….

[T]o the extent The Satanic Temple argues that the anti-SLAPP statute cannot apply when the plaintiff is not a public figure, that argument is belied by the plain text of the statute, which does not contain a “public figure” requirement. {The district court was not presented with the question of The Satanic Temple’s status as a public figure on summary judgment and thus did not resolve it. On appeal, neither party has briefed the issue. Accordingly, we express no opinion about whether The Satanic Temple is a public figure for First Amendment purposes.}

Finally, the Temple’s appeal to general First Amendment principles is unhelpful. The Satanic Temple claims that we must “delineate those charges which deserve First Amendment protection from those that don’t”—and the instant statement, it claims, is one that does not deserve such protection. But that is not our job. “[T]he States may define for themselves the appropriate standard of liability for a publisher … of defamatory falsehood injurious to a private individual,” and they “are free to offer greater protection to individual rights than federal law affords” if they so choose. New York has made its choice: In cases concerning statements made in “a public forum in connection with an issue of public interest,” New York has chosen to impose a higher standard of fault than the Constitution otherwise requires. It is not our job to second-guess that choice; it is our job to apply it….

The court then concluded that The Satanic Temple hadn’t offered enough evidence to show “actual malice”:

To show actual malice, The Satanic Temple must demonstrate “that the author in fact entertained serious doubts as to the truth of his publication or acted with a high degree of awareness of probable falsity” prior to publication. The Satanic Temple claims that it established a triable issue of fact as to Newsweek’s “serious doubts” about the cover-up quote’s truth, and offers several arguments as support: (1) Newsweek’s failure to follow its own editorial standards, (2) Duin and Cooper’s bias against the organization, (3) Newsweek’s use of a hostile and pseudonymous source, and (4) Newsweek’s shortcomings in its fact-checking. Even construing the record in the light most favorable to The Satanic Temple, actual malice is a “decidedly high standard of culpability,” and we conclude that none of the above, taken alone or in combination, is enough to raise a triable issue of fact as to Newsweek’s actual malice.

First, assuming arguendo that Newsweek violated its own editorial guidelines by, for example, failing to be “specific and complete” when writing about criminal allegations, that failure does not constitute actual malice. Even “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” cannot alone establish actual malice…. “[W]hether [the reporter] complied with journalistic standards is of little evidentiary value” in an actual malice dispute …. The Satanic Temple contends that, even if compliance with industry-wide journalistic standards is not enough to establish actual malice, compliance with one’s own standards is more probative of a news outlet’s reckless disregard for the truth. We disagree. Whether the newsgathering standards were industry-wide norms or Newsweek’s own, The Satanic Temple’s argument sounds in negligence, and “proof of mere negligence does not suffice to establish actual malice.”

Likewise, Cooper and Duin’s alleged bias against The Satanic Temple—… assuming arguendo that they possessed such a bias—is not enough to establish that Newsweek acted with actual malice as to the cover-up quote. “Actual malice” as a standard of fault “should not be confused with … a motive arising from spite or ill will.” Therefore, the standard “is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.” While we have said that “[e]vidence of ill will combined with other circumstantial evidence indicating that the defendant acted with reckless disregard of the truth” may support a finding of actual malice, “[s]tanding alone, … evidence of ill will is not sufficient.” …

Third, Newsweek’s reliance on Strange as a source does not support a finding of actual malice. A journalist’s use of an anonymous—or, in this case, pseudonymous—source does not establish actual malice unless the story is, for example, “based wholly on an unverified anonymous” report from that source, or where “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Here, Strange’s report of “accounts of sexual abuse being covered up in ways that were more than anecdotal” was corroborated by multiple other sources, such that Duin had no “obvious reason[ ]” to doubt him or the statement’s veracity. The Satanic Temple further argues that Newsweek demonstrated a reckless disregard for the truth by relying on a “hostile” source in Strange, who left the organization due to disagreements with its direction. But we rejected a similar argument in Church of Scientology Int’l v. Behar (2d Cir. 2001), in which the defendant reporter relied on “a former high-ranking” member of plaintiff’s organization who had previously “tried to frame the [organization] … by staging a phony death threat.” Even in the face of that overt bias, we held that the reporter’s reliance on the source could not establish actual malice sufficient to elude summary judgment in light of the reporter’s “considerable corroboration” of the source’s account. Similarly, Newsweek’s use of the “considerabl[y] corroborat[ed]” quote from Strange cannot support a finding of actual malice here.

Fourth, and finally, neither Newsweek’s failure to independently fact check the cover-up quote nor its failure to ask Greaves for his response to it is sufficient to create a triable issue of fact on actual malice. It is uncontroverted that Cooper relied on Duin to fact-check her own article, and that Duin did not specifically ask Greaves about Strange’s cover-up quote during their interview. Perhaps those actions were negligent, but neither demonstrates a reckless disregard for the truth of the cover-up quote. A news outlet’s insufficient investigation alone is not enough to demonstrate actual malice; we have said that “a publisher who does not already have obvious reasons to doubt the accuracy of a story is not required to initiate an investigation that might plant such doubt.” The Satanic Temple points to no such “obvious reasons” that ought to have prompted Newsweek to investigate further.

In sum, it may well be the case that Newsweek was unaware whether Strange’s cover-up quote was indeed true prior to publication. But “there is a critical difference between not knowing whether something is true and being highly aware that it is probably false,” and “[o]nly the latter establishes reckless disregard in a defamation action.” Nothing on this record supports an inference that Newsweek was highly aware that the coverup quote was false—if indeed it was—before hitting publish.

We therefore agree with the district court: No reasonable jury could find that Newsweek either knew or entertained serious doubts that the cover-up quote was false prior to publication….

Cameron Stracher and Sara Tesoriero (Cameron Stracher, PLLC) represent Newsweek.

The post The Satanic Temple Loses Libel Suit Against Newsweek Over "Accounts of Sexual Abuse Being Covered up" Allegation appeared first on Reason.com.

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Last November, six members of Congress, all Democrats, posted a video that reminded U.S. military personnel of their duty to “refuse illegal orders.” That well-established principle, which is reflected in the Defense Department’s Law of War Manual, is legally uncontroversial. And as a federal judge later noted, the video was “unquestionably protected” by the First Amendment. President Donald Trump nevertheless insisted that the legislators had committed a grave crime.

“It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” Trump wrote on Truth Social. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.” He added that “their words cannot be allowed to stand” because “we won’t have a Country anymore!!!” He later reiterated that the legislators who produced the video had engaged in “SEDITIOUS BEHAVIOR,” which he claimed is “punishable by DEATH!”

That apoplectic reaction, which led to an attempted federal indictment, was part of a familiar pattern. Again and again during the last decade, Trump has accused people who irk him of treason, sedition, or both. But those words do not mean what he thinks they do, and for good reason: Through centuries of bitter experience, Americans have learned the perils of letting the government define treason and sedition broadly enough to criminalize dissent. Although Trump clearly has not absorbed those lessons, his habitual invocation of these terms is a useful reminder of why U.S. law makes it so difficult to prove such charges.

What Treason and Sedition Actually Mean

Article III, Section 3 of the Constitution says “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” It adds that “no person shall be convicted of treason” unless two witnesses testify to “the same overt act” or the defendant confesses “in open court.”

That stringent definition of treason was a response to historical abuses, which extended the concept to include thought crimes, offensive remarks, religious dissent, and other nonviolent conduct that did not entail armed rebellion or siding with the nation’s wartime enemies. The statutory definition of treason tracks the language of the Constitution.

That law does authorize a maximum penalty of death, which probably was what Trump had in mind when he condemned the “traitors” who appeared in the video that offended him. But nothing they said or did came remotely close to the elements of this crime.

What about sedition? Contrary to what Trump implied, there is no such stand-alone crime under the current U.S. Code. But federal law defines “seditious conspiracy” as a plot 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.” That also seems far afield from urging members of the armed forces to defend the Constitution and respect the law, which is what the legislators did in that video.

Eager to deliver on the president’s threat, Jeanine Pirro, the Trump-appointed U.S. attorney for the District of Columbia, reportedly turned to 18 USC 2387, which applies to someone who “causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States.” That crime, which is punishable by up to 10 years in prison, requires an “intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States.” And as relevant here, the Uniform Code of Military Justice defines insubordination as willfully disobeying a “lawful order,” while the video explicitly addressed “illegal orders.”

How bad was the fit between Section 2387 and the political speech that Pirro claimed it covered? So bad that a grand jury rejected her proposed indictment in February—a remarkable setback, since grand jurors, who hear only the government’s side of a case, almost always approve charges recommended by federal prosecutors. Two weeks later, NBC reported that Pirro had decided to drop the case.

The fact remains that the president of the United States wanted to imprison six members of Congress for saying things he did not like. And instead of trying to dissuade him, a federal prosecutor tried to make his revenge fantasy come true.

That episode is especially striking because it went beyond bluster. But it was consistent with Trump’s general attitude toward his political opponents, whom he routinely describes as traitors who belong in jail.

Trump Sees Traitors Everywhere

After Trump fired FBI Director James Comey in May 2017, Deputy Attorney General Rod Rosenstein suggested that Justice Department officials start recording their conversations with the president. That was “illegal and treasonous,” Trump said.

Failing to applaud Trump during his State of the Union address might qualify as treason, he suggested in 2018. “Can we call that treason?” he wondered. “Why not? I mean, they certainly didn’t seem to love our country very much.”

That same year, The New York Times published an anonymous essay by an administration official who was critical of the president. That was also “treason” in Trump’s book. So was Democratic opposition to his immigration policies, Trump declared on Twitter in April 2019.

The following month, Trump said the federal investigation of his 2016 campaign’s alleged ties to Russia was “treason.” Two months later, he reiterated that characterization, describing the Russia probe as an “illegal and treasonous attack on our Country.”

Trump took a similar view of the controversy that led to his first impeachment, which involved a telephone call in which he pressured Ukrainian President Volodymyr Zelenskyy to launch a corruption investigation of Joe Biden, the opponent Trump expected to face in the next year’s presidential election. The transcript of that call “reads like a classic organized crime shakedown,” Rep. Adam Schiff (D–Calif.) said during a House hearing in September 2019.

Schiff then summarized “the essence of what the president communicates.” Although Schiff did not claim to be quoting Trump directly, his paraphrase, which he later said was partly “parody,” was misleading in at least one respect. But instead of simply trying to correct the record, Trump said Schiff should be “questioned at the highest level for Fraud & Treason” because “he wrote down and read terrible things, then said it was from the mouth of the President.”

The next day, Trump doubled down. Schiff “illegally made up a FAKE & terrible statement,” “pretended it to be mine,” and “read it aloud to Congress and the American people,” Trump complained. “It bore NO relationship to what I said on the call. Arrest for Treason?” The following month, Trump reiterated that Schiff had committed “High Crimes and Misdemeanors, and even Treason,” adding that House Speaker Nancy Pelosi (D–Calif.) was “every bit as guilty” because she was complicit in Schiff’s “ruthless con.”

Trump also was mad at the House select committee that investigated the 2021 Capitol riot—the incident that sparked his second impeachment. The committee included Schiff and eight other legislators: Reps. Bennie Thompson (D–Miss.), Zoe Lofgren (D–Calif.), Pete Aguilar (D–Calif.), Stephanie Murphy (D–Fla.), Jamie Raskin (D–Md.), Elaine Luria (D–Va.), Liz Cheney (R–Wyo.), and Adam Kinzinger (R–Ill.). In March 2023, Trump said all of them “should be prosecuted for their lies and, quite frankly, TREASON!”

Last July, Trump deployed that charge against former President Barack Obama, who he said was caught “absolutely cold” trying to “rig the election” in 2016 and 2020. “What they did in 2016 and 2020 is very criminal,” Trump told reporters at the White House. “This was treason.”

After launching a war against Iran last February, Trump objected to unfavorable news coverage of the conflict. “When the Fake News says that the Iranian enemy is doing well, Militarily, against us, it’s virtual TREASON in that it is such a false, and even preposterous, statement,” he said in a Truth Social post on May 12. “They are aiding and abetting the enemy! All it does is give Iran false hope when none should exist. These are American cowards that are rooting against our Country.”

A few days later, Trump accused New York Times reporter David Sanger of the same crime. “I had a total military victory, but the fake news, guys like you, write incorrectly,” he told Sanger. “I actually think it’s sort of treasonous what you write.”

As Trump described it, journalists like Sanger were guilty of “virtual TREASON,” meaning they were only “sort of treasonous.” That counts as rhetorical restraint for Trump, who on other occasions has made it clear that he thought the objects of his ire should be arrested, prosecuted, imprisoned, and maybe even executed for crossing him.

The Treason Clause Was Meant to Stop Exactly This

Trump’s treason tic might seem laughable in a country where people generally are free to speak their minds without worrying that they will be carted off to jail—let alone burned at the stake or hanged, drawn, and quartered (the traditional punishments for treason in Tudor England). But there is plenty of historical precedent for Trump’s attitude, which is why the Framers decided to define treason narrowly.

Under the new Constitution, James Wilson explained at the Pennsylvania Ratifying Convention in 1787, “Congress can neither define nor try the crime. If we have recourse to the history of the different governments that have hitherto subsisted, we shall find that a very great part of their tyranny over the people has arisen from the extension of the definition of treason. Some very remarkable instances have occurred, even in so free a country as England.”

Wilson, a jurist who would later serve on the U.S. Supreme Court, offered an example: “If I recollect right, there is one instance that puts this matter in a very strong point of view. A person possessed a favorite buck, and, on finding it killed, wished the horns in the belly of the person who killed it. This happened to be the king: the injured complainant was tried, and convicted of treason for wishing the king’s death.”

Whether or not Wilson recollected right, the incident he described is plausible given the broad meaning of treason under early English law. As developed by the courts, the concept included “constructive treason,” which encompassed situations that even Trump might not recognize as examples of the crime. “During the early reign of Edward III a knight forcibly held a man until he paid ninety pounds,” which “was held to be treason because the knight was guilty of accroaching, or attempting to exercise, royal power,” according to an unsigned 1959 Indiana Law Journal article.

Although the Treason Act of 1351 was supposed to rein in such extensions, it left a lot of leeway for abuse, partly because it defined the crime to cover anyone who “doth compass or imagine” the death of the king, the queen, or the heir apparent. “In the years following the reign of Edward III,” the law journal article notes, the courts “construed this to mean that if a man imagined the death of the king, he should be put to death for such imagining, without having done anything—that is, without any overt act.”

Trump probably would see nothing wrong with that understanding of treason. After all, he demanded that ABC fire late-night comedian Jimmy Kimmel for telling a joke that imagined the president’s death, and he ordered James Comey’s prosecution for sharing a picture of seashells arranged to form a numerical slogan that supposedly alluded to the same outcome.

Trump likewise might welcome the legal regime established during Henry VIII’s reign, when acts or words deemed to undermine the chief executive’s dignity qualified as treason. Sir Thomas More, Henry’s former lord chancellor, was executed for treason in 1535 because he refused to acknowledge the king’s authority over the English church and declined to recognize his marriage to Ann Boleyn. Under Elizabeth I, treason included deviating from royally sanctioned religious beliefs.

The Treason Act of 1351 remained in effect during the reign of George III, the king against whom American colonists eventually rebelled, although by then an overt act was required to substantiate the charge. After Rhode Islanders burned a British vessel assigned to intercept smugglers in 1772, Edward Thurlow, England’s attorney general, and Alexander Wedderburn, the solicitor general, deemed the sabotage an act of treason. Two years later, they reached the same conclusion about the Boston Tea Party because the protesters had aimed to obstruct enforcement of legislation enacted by Parliament.

In both cases, the perpetrators were threatened with trial in England, a prospect that further inflamed Americans who already had a long list of grievances against George III’s government. Once the Founders decided to separate from England, they were acutely aware that they qualified as traitors subject to execution. They were also familiar with the long history of abuses stemming from a broad understanding of treason.

“In point of precision and accuracy with regard to this crime,” English common law “was grossly deficient,” Wilson observed in 1791. “Its description was uncertain and ambiguous; and its denomination and penalties were wastefully communicated to offences of a different and inferiour kind.”

Although the Treason Act of 1351 was designed to “lop off these numerous and dangerous excrescences,” its safeguards had failed “during times remarkably tyrannical or turbulent,” Wilson noted. “Admonished by the history of such times and transactions as these, when legislators are tyrants or tools of tyrants,” he added, “the people of the United States have wisely and humanely ordained, that ‘treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.'”

When America Criminalizes Dissent, It Does Not Go Well

The related concept of sedition posed similar dangers. In 1734, for example, John Peter Zenger, publisher of The New-York Weekly Journal, was charged with seditious libel, a crime that English common law defined to include speech that brought government officials into “hatred or contempt.” His offense was printing articles that criticized New York’s royal governor.

The potential penalties for seditious libel, which included unlimited fines and up to life in prison, were severe, and truth was no defense. To the contrary, an old maxim held that “the greater the truth, the greater the libel,” meaning that accurate criticism was more likely to generate popular outrage. Zenger’s jury nevertheless refused to convict him. That 1735 verdict was both an early victory for freedom of the press and a precedent that advocates of jury nullification cite to this day.

The lessons of that episode were evidently lost on the Federalist legislators who approved the Sedition Act of 1798. Amid a panic about a seemingly imminent war with France, President John Adams’ party viewed Vice President Thomas Jefferson’s Democratic-Republicans as “Jacobins” inclined to aid and abet French conquerors. In response to that supposedly existential threat, Congress enacted a law abridging freedom of the press just seven years after the states had ratified a constitutional amendment that ruled out such legislation.

Among other things, the Sedition Act made it a crime, punishable by a fine up to $2,000 (something like $54,000 today) and up to two years in jail, to write or publish “any false, scandalous, and malicious writing” against “the government of the United States,” Congress, or the president. The Federalists, who were openly targeting their political opponents, presented the statute as less severe than the common-law definition of seditious libel, since it required malicious intent and theoretically recognized truth as a defense. But in practice, neither requirement proved an obstacle to prosecutions, which were facilitated by Federalist judges, including Supreme Court Justice Samuel Chase.

The two dozen or so defendants who faced indictments included a member of Congress and various irksome journalists, all Democratic-Republicans. As the legal scholar Wendell Bird notes in his book Criminal Dissent, the Federalists sincerely believed the opposition was not just wrong but fundamentally illegitimate. In their view, the people got a chance to participate in the political process every few years through elections, and they should otherwise keep quiet if they did not have anything nice to say. The Federalists thought criticizing a duly elected government was disruptive, destabilizing, and subversive—in a word, seditious.

The Sedition Act expired on March 3, 1801—not coincidentally, the day before Jefferson took office as president. But it was enormously unpopular during its brief existence, providing a potent political weapon to Jefferson’s party, which portrayed the law as tyrannical and unconstitutional. The Federalists’ ham-handed attempt to criminalize their opponents played a major role in the party’s collapse.

Similar repression has periodically resurfaced in the United States, typically tied to war or the threat of war. During the Civil War, Abraham Lincoln suspended the writ of habeas corpus, and his government arrested thousands of suspected Confederate sympathizers. During World War I, Congress approved the Espionage Act of 1917, which made it a crime, punishable by up to 20 years in prison, to obstruct military recruitment. The Sedition Act of 1918 extended that crime to include “any disloyal, profane, scurrilous, or abusive language” regarding “the form of government of the United States,” the Constitution, or the U.S. armed forces.

In the 1919 case Schenck v. United States, the Supreme Court unanimously upheld the Espionage Act convictions of two Socialist Party members who had distributed anti-draft pamphlets, saying such speech posed a “clear and present danger” in the context of an ongoing war. A week later, the justices applied the same reasoning in upholding the Espionage Act conviction of perennial Socialist presidential candidate Eugene V. Debs, who had been sentenced to 10 years in federal prison for criticizing the war and the Wilson administration.

The Supreme Court also looked kindly on the Smith Act of 1940, which made it a crime to advocate “overthrowing or destroying” the government “by force or violence.” In the 1951 case Dennis v. United States, the justices approved the prosecution of Communist Party members under the Smith Act, again relying on the “clear and present danger” test. But the Court repudiated that test in the 1969 case Brandenburg v. Ohio, holding that advocacy of illegal conduct can be treated as a crime only when it is both “directed” at inciting “imminent lawless action” and “likely” to do so.

Disloyalty to Trump Is Not Treason

The charge Pirro tried to deploy against the politicians whose video annoyed Trump is a descendant of the Espionage Act and the Smith Act, which included similar language about “willfully” trying to undermine military discipline. But even if Pirro had managed to obtain an indictment, any prosecution would have been constrained by the Brandenburg test as well as the statute’s intent requirement.

More typically, Trump’s charges of treason and sedition are not tied to any particular law. Rather, he equates disloyalty to him with disloyalty to the nation, harking back to the commodious conceptions of these crimes that prevailed under English common law and the edicts of tyrants such as Henry VIII.

Like the Federalists in the 1790s, who portrayed their political opponents as Jacobins bent on annihilating the republic, Trump describes Democrats as “sick, sinister, and evil people” who are “trying to destroy our country” because they “hate our country.” They are “communists,” “Marxists,” “fascists,” “radical left lunatics,” and “sick people” who “live like vermin within the confines of our country” and constitute “the enemy from within.” They are a “disgrace to our nation,” Trump says, because “they’re against anything that makes America strong, healthy, and great again.”

Such thinking did not work out very well for the Federalists. It remains to be seen whether the Republican Party will pay a long-term price for tying itself to the authoritarian impulses of a thin-skinned, vindictive man who sees no difference between dissent and treason.

The post Trump Loves Accusing Critics of Treason. U.S. Law Makes That Charge Hard To Prove—for Good Reason. appeared first on Reason.com.

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