Is it legal for an American to call for the overthrow of the US government?

[NQAS]

No knee jerk responses. No emotional responses.

Is what Michael Flynn has done - or his son, or his followers - legal?

The words only. Is that constitutionally protected free speech?

[FalloutShelter]

1. Short answer- NO

18 U.S. Code § 2385 - Advocating overthrow of Government
U.S. Code
Notes
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Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.

(June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 2, 70 Stat. 623; Pub. L. 87–486, June 19, 1962, 76 Stat. 103; Pub. L. 103–322, title XXXIII, § 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.)
Reply to this post

[Mr.Bill]

27. Well, that pretty much covers most if not all

of the 1/6ers.

[Arkansas Granny]

2. No, but there seems to be some confusion about the difference

between free speech and sedition.

https://democraticunderground.com/?com=view_post&forum=1017&pid=659358

[NQAS]

3. Thanks

Next question?

What next?

Is he setting himself up as a martyr?

I do hope the WH and the DOJ are gaming out all the options.

[Takket]

5. cowards and theives have no interest in being martyrs

flynn is interested in money and power. and he doesn't care who has to die for him to get it. he is a traitor and should be treated as such.

[former9thward]

8. Except that is not the next question.

The first two responses are wrong. A general statement saying the government should be overthrown is not illegal. Radicals in the 60s and 70s routinely called for the overthrow of the government and no one was ever prosecuted. To be prosecuted you have to make an overt act in furtherance of the statement.

[malaise]

10. I get your point but What was Jan 6? n/t

[former9thward]

12. Whatever Jan 6th was it occurred before Flynn made his statement.

So legally it could not have anything to do with his statement. I am sure prosecutors are looking at statements made before Jan 6th by whomever to see if there are any ties to that day.

[malaise]

13. Weren't Flynn and his brother involved in the planning for Jan 6? n/t

[Poiuyt]

19. I believe Flynn's brother was involved in the decision to not deploy the National Guard

during the insurrection.

[malaise]

21. Correct

That's what I read

[stopdiggin]

22. 'involved' along with a roomful of other people

during a telephone call. (To date) none have been charged with attempted overthrow (or anything else).
Charles Flynn's 'roll' in Jan 6th has been vastly overstated. Basically because of the name.

[stopdiggin]

25. nope.

If you have any evidence of pre-planning between the (active) military and Roger Stone, Proud Boys, Oath Keepers -- I'd really like to take a look.

[NQAS]

24. That's what I'm getting at

Then what about the USC excerpts extracted in response to my initial post?

Sounds like just calling for the overthrow is a criminal act.

Or is it "merely" free speech?

And, harking back to Bill Clinton on the meaning of words - I think he took issue with the word is and maybe the word sex - we have the issue of "overt act." Posing the issue of violence in the form of a question - why can't Myanmar happen here - has been the way that RWNJs have evaded all sorts of prosecutions for criminal acts, defamation, etc.

What's worth pondering is that if these crazies are successful - and I don't entirely rule out that possibility - the first thing they'll do is the first thing that every dictatorship does. Outlaw free speech, especially speech directed against the government and the leadership.

[former9thward]

26. The Supreme Court has interpreted how the Constitution applies to these laws.

And often, even when the court has restricted the use of a law, or even made it unenforceable, the law remains on the books because lawmakers are lazy.

The most relevant decision here is Brandenburg v Ohio (1969). This case imposed an "imminent lawless action" test on any free speech. This test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action.

So the speech is unlawful if it results in illegal action faster than police can arrive. Since police often are already on the scene (Jan 6th) or they can arrive in minutes, most speech is protected in the U.S. no matter what its content.

[Takket]

4. IOKIYAAR

[SoCalDavidS]

6. Yes, If You Are Supporting The repub Party nt

[live love laugh]

18. It's only illegal if you support RepubliQans?

[stopdiggin]

23. thinking (hoping?) that was an attempt at humor? -(nt)-

[Wingus Dingus]

7. For a retired military officer and NSA official? I don't think it's legal.

[malaise]

9. 18 U.S. Code CHAPTER 115--TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES

https://www.law.cornell.edu/uscode/text/18/part-I/chapter-115

NeffinO

[Deuxcents]

11. Can the military

Call him back up for active duty n then court martial him n put him in jail? This is not free speech.

[Irish_Dem]

14. Why do taxpayers have to fund a retired general so he can overthrow the government?

[marybourg]

15. If through election, yes.

If by force or violence, no.

[DBoon]

16. There are probably laws dating back to the McCarthy era

designed to weed out and sanction communists and their "fellow travelers"

I think the Smith Act is still on the books, though convictions were overturned.

The so-called Rap Brown law makes it a federal crime to cross state lines to incite a riot.

Government employers may require signing a statement that one has never advocated violent overthrow. This would be a condition of employment.

[eallen]

17. Short answer: it usually is constitutionally protected

Despite any statute, Brandenburg still is the rule. Such advocacy exposes the speaker only if it is likely to lead to "imminent lawless action."

I'm no lawyer. Every American should learn the outlines of what the 1st amendment does.

[Baked Potato]

20. I think Flynn provided testimony against T***p/Russia and

this over-the-top behavior is cover.