Understanding Insurrection and Sedition

In response to the January 6 siege on the U.S. Capitol, the Joint Chiefs of Staff penned a letter denouncing the rioters’ behavior and emphasizing that the “rights of freedom of speech and assembly do not give anyone the right to resort to violence, sedition and insurrection.” This analysis defines acts of sedition and insurrection and evaluates the seriousness of both charges.

Q1: What is “sedition” and “insurrection”?

A1: Generally, sedition is conduct or speech that incites individuals to violently rebel against the authority of the government. Insurrection includes the actual acts of violence and rebellion. In a monarchy, sedition might refer to actions instigating the removal of a king or queen. In a constitutional democracy, sedition and insurrection refer to inciting or participating in rebellion against the constitutionally established government, its processes and institutions, or the rule of law. In other words, in the United States’ democracy, violently overthrowing the government or its institutions is overthrowing the Constitution itself. One cannot commit sedition or insurrection to “overthrow a government” while still claiming to uphold and defend the Constitution. The U.S. government, the rule of law, and the Constitution are inextricably linked, and violent attacks on any of the three are not protected actions.

Q2: Is it a federal crime to commit “sedition” and “insurrection”?

A2: It is a serious federal crime to commit seditious conspiracy or to participate in an insurrection against the government.

Under 18 U.S.C. § 2384, “seditious conspiracy” occurs when two or more persons:

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.

Individuals charged with seditious conspiracy can be fined and could serve up to 20 years in prison.

It is important to consider that federal law refers to “seditious conspiracy” as opposed to just “sedition.” There is the added burden of proof that an individual must actively be conspiring and taking steps toward a violent action against the government, not just making comments that seem to merely reflect that desire. This is to ensure that First Amendment activity is protected under the Constitution, and only actions that overtly demonstrate individuals’ plans to take dangerous steps toward overthrowing the United States’ constitutional government are charged.

But those that serve in the military and have taken an oath to protect and defend the Constitution are held to a higher standard. Under the Uniform Code of Military Justice, individuals intending on overthrowing or destroying a “lawful civil authority” can be charged under 10 U.S.C. §894. Moreover, members of the military can be charged under this provision for failing to do their “utmost to prevent and suppress” these activities from taking place.

Insurrection is captured by 18 U.S.C. § 2383 and applies to “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the law there, or gives aid or comfort thereto.” Charges of insurrection, or the incitement of insurrection, involves fines and imprisonment of up to 10 years. Individuals charged with insurrection are also ineligible to hold public office in the United States.

Q3: How is this different from expressing opposition to policy?

A3: There is a clear distinction between actions aimed at responsibly holding institutions accountable through constitutional means—actions that are routinely part of and encouraged in a strong democracy—and violence aimed at undermining the proper functioning and accessibility of democracy for all citizens. Protest and dissent are comprehensively protected under the First Amendment. However, acts of sedition, seditious conspiracy, and insurrection actively damage the United States’ system of government with the ultimate consequence of depriving other citizens an equal opportunity to participate in democracy and affect responsible change.

Freedom of speech in nearly all forms is an essential part of U.S. democracy. But to maintain these freedoms, we need to protect and preserve the Constitution, and the institutions that it establishes, not because they are perfect, but because they are capable of change through peaceful means. All Americans should take seriously the admonition that ours is a government “of, by, and for the people” and learn to be effective agents of change under the Constitution rather than succumb to the mistaken claim that overthrowing the constitutional system is the answer.

Q4: Why is a sedition charge or an insurrection charge so serious?

A4: Sedition and insurrection charges are serious because they go to the very heart of U.S. constitutional democracy and the fundamental value of respect for the rule of law that distinguishes the United States from totalitarian regimes.

Over the course of U.S. history, these terms have been utilized to find fault with individuals who were merely being critical of the government or a particular party. However, as the nation matured, the U.S. public developed an almost sacred understanding that dissent, and even hyperbolic conspiracy and seemingly violent rhetoric, can be largely tolerated under the Constitution.

But there is a reason that many are confident that individuals involved in the riot at the Capitol will be charged on seditious conspiracy, and potentially even insurrection. The violent threats leading up to January 6, the actions taken at the Capitol, and the continued incitement of attacks on state and federal governments demonstrate a persistent and determined assault on U.S. democracy. The charges are serious and unprecedented, but so too are the violent actions that took place.

Suzanne Spaulding is senior adviser for homeland security and director of the Defending Democratic Institutions project at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Joseph Federici is an associate director and associate fellow with the CSIS International Security Program. Devi Nair is a program manager and research associate with the CSIS International Security Program.

Critical Questions is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2021 by the Center for Strategic and International Studies. All rights reserved.

Suzanne Spaulding
Director, Defending Democratic Institutions, and Senior Adviser, Homeland Security, International Security Program

Devi Nair

Former Associate Director and Associate Fellow, International Security Program

Joseph Federici